Keke v Regina [2006] SBCA 1; CA-CRAC 008, 009 and 11 of 2005 (25 May 2006)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands
COURT FILE NO:	Criminal Appeal No. 8, 9 and 11 of 2005
DATE OF HEARING:	Thursday 18th May 2006
DATE OF JUDGMENT:	Thursday 25th May 2006
THE COURT:	Lord Slynn of Hadley P Ward JA Williams JA.
PARTIES:	HAROLD KEKE, RONNIE CAWA AND FRANCIS LELA -V- REGINA
ADVOCATES: Appellants: Respondent:	K Averre for 1st Appellant G Brown for 2nd Appellant M Swift for 3rd Appellant J Cauchi and H Kausimae for Respondent
KEY WORDS:	Where all 3 accused were jointly charged with the murder of Fr Geve and were sentenced to life imprisonment – whether the trial judge properly took into account inconsistencies between the evidence of prosecution witnesses and previous inconsistent statements – whether records of interview of the second and third appellant were voluntarily given.
EX TEMPORE/RESERVED/ ALLOWED/DISMISSED:	The appeal of each appellant is dismissed.
PAGES:	(1-14)

The accused were charged jointly with the murder of Fr Augustine Geve at Haliatu village on the Weather Coast of Guadalcanal on 20 August 2002. They pleaded not guilty before Kabui J, were convicted and sentenced to life imprisonment.

The deceased was elected as a Member of the National Parliament for South Guadalcanal in December 2001, eight months before his death. In the election he had the support of the Guadalcanal Liberation Front (GLF) led by the first appellant. The deceased had been appointed a minister in the government of Sir Allen Kemakeza and lived in Honiara in order to carry out his ministerial duties. He came from Raiavu village on the Weather Coast some distance away from Haliatu village.

The first appellant, Keke, was the leader of the GLF and he went around Guadalcanal to mobilise young people into the GLF. Cawa and Lela joined the GLF towards the end of 1998. Cawa was the second in command of the GLF and was styled Supreme Commander of Operations. He is Keke’s nephew. Lela described himself as a gunman serving under Cawa.

On 16 August 2002 Fr Geve visited his constituency by boat reaching his village of Raiavu on 18th. Keke told the court that he had sent a letter to Fr Geve asking him to come to discuss some matters.

The prosecution case was that Keke spoke at a meeting the following day in another village, Ngalipapa, and told the villagers what to say at a meeting in Raiavu which was to take place later that day. Fr Geve did not attend the meeting in Ngalipapa but both men were present in the Raiavu meeting.

At that meeting, Keke was unarmed but his men were around and were armed. Keke asked the people if they wanted Fr Geve to continue as Member for South Guadalcanal and eventually received the reply that they did not because he was a 'con man'. As a result of that meeting Fr Geve wrote a letter of resignation which Keke gave to two Melanesian Brothers to deliver to Honiara.

Later Keke and the other appellants left for the village of Inakona in the vessel Iu Mi Nao and, when they left again later, Keke was stated to have said that Fr Geve was an evil man and should be killed. The ship went to the village next to Haliatu and Keke and his men, including the other two appellants, went to Haliatu. Fr Geve was shot and the appellants then returned to the boat carrying Fr Geve’s briefcase.

A number of witnesses heard the sound of gunshots and saw Fr Geve’s dead body but only one witness, Fr Lauvatu, gave an eyewitness account of the events on the beach at Halaitu. He described how, despite the attempts of a Melanesian Brother to persuade Keke to negotiate, Keke shot his victim in what was effectively an execution. The prosecution case was that, once Keke’s party returned to Inakona, Keke made various statements that he had killed Fr Geve. Much of the evidence was denied by Keke.

All three appellants raise two grounds in common. We take the wording of the grounds from the appeal of Keke but the others are similar in effect.

It is convenient to deal with those grounds first and we can do so shortly. The learned judge acknowledged that the evidence of each of the witnesses, including Fr Lauvatu, showed inconsistencies in themselves and with previous statements and also with the evidence of other witnesses. Having acknowledged that, he proceeded to consider the evidence as a whole and reached his conclusion.

It has been stated many times that an appellate court will only interfere with the trial judge’s assessment of the credibility and weight of the witnesses at the trial if they are clearly wrong or cannot be supported on the evidence as a whole. The reason is plain. The judge in the lower court has the benefit of having seen and heard the witnesses and is in a much better position to evaluate their evidence than the appellate judges who can only rely on the written record of the evidence.

Counsel provided detailed submissions in support of this ground. We have been through them with care and are satisfied that the learned judge’s conclusions as to credibility and truth could reasonably be decided on the evidence before him and we do not find any reason to interfere.

The suggested misdirection on the assessment of the credibility of witnesses appears to be a reference to a passage which counsel suggests shows the judge drew an adverse inference from the exercise by Keke of the right to silence when interviewed by the police. In his judgment, the judge referred to the fact that Keke’s defence at the trial was that the murder had been the work of two other named people who, by the time of the trial, were dead. The learned judge continued:

'Harold Keke’s version of facts has the hallmarks of a made-up story. The story does not seem to have a ring of truth about it. It was made up by Harold Keke to escape responsibility for the death of Fr Geve. Why did he want to hide the killers of Fr Geve and then be arrested, detained, charged and tried for the death for which he was not responsible? Perhaps there is no point in telling the police because the killers are dead. It is also all too easy to blame the dead persons to mislead this court.'

Mr Averre suggests this indicates that the judge’s reasoning was that Keke’s account cannot be true because, if it was true, Keke would have told the police. The fact he did not tell them demonstrates that the judge drew an inference adverse to the appellant from his silence when previously spoken to by the police. We cannot accept that is the effect of that passage. It is a comment, and a justified one, on the fact that this defence only surfaced at the trial.

'Insofar as Harold Keke is concerned, his stand that he is innocent of the murder of Fr Geve as against the evidence of the Crown witnesses places me in the position of having to decide who were telling the truth in the trial. The question of the credibility of Harold Keke, Ronnie Cawa and Francis Lela and the relevant Crown witnesses therefore becomes important, if not decisive, in this case. There is no other way in which the guilt or otherwise of Harold Keke can be determined, including Ronnie Cawa and Francis Lela.'

In a later passage he states that the case 'really turns on who was telling me the truth during the trial'. This theme is repeated elsewhere.

Counsel submits that this misunderstands the burden of proof in that the judge is saying he needs to find out the truth rather than decide if the Crown has proved their guilt beyond reasonable doubt.

It is correct that the judge’s function as the tribunal of fact in such a case does not include the need to ascertain the truth. If there is to be a conviction, the judge needs to be satisfied all the essential ingredients of the offence have been proved beyond reasonable doubt. Clearly if that stage is reached, the judge will be as close to deciding the truth as is reasonably possible. No judge would properly convict on any criminal charge if he still nursed any real doubt whether he had come to the correct conclusion. The repeated reference to finding the truth is unfortunate but we are satisfied the judge’s references to the need to find the truth are no more than an expression of that approach. The judgment as a whole shows that the judge is indicating that failure to find there has been proof beyond reasonable doubt must mean the prosecution has failed. There are similar passages in respect of all three appellants.

In their submissions on the second common ground, counsel draw our attention to passages where the judge effectively asks himself the rhetorical question, 'Why should the prosecution witnesses lie?'

This occurs on a number of occasions and two examples illustrate the point counsel is making:

'There is no evidence to suggest that these witnesses had compelling motives to lie to this court about the death of Fr Geve.'

When referring to the defence submission in respect of the critical evidence of Fr Lauvatu, the learned judge suggested:

'Apart from sighting (sic) these inconsistencies in his evidence and as compared with the evidence of other Crown witnesses, the defence did not suggest why Fr [Lauvatu] should be lying to this court. Did he have an axe to grind? I can think of none.'

The reference to whether the witness had an axe to grind was repeated in his judgment.

Counsel for the appellants submit that the reference to a possible motive and the use of a rhetorical question placed a burden on the defence to have to provide an answer in the form of a motive before the witness’ evidence could be impugned.

That is not the case. We are satisfied the meaning of those questions was to show that the judge first considered whether there was any evidence from either side to suggest a motive to lie. Clearly, if he found such a motive, he would have taken that into account when assessing that witness’s credibility. Having found none on the evidence he had heard, the judge was able then to assess the credibility and truth of the witness on the evidence he had given in court. It is incorrect to suggest his question required an answer from the accused although we have no doubt that had there been evidence from the defence to suggest such an improper motive, the judge would have considered it most carefully when evaluating that witness.

Authorities from other jurisdictions have pointed out that it is not helpful or useful to suggest a jury should look for motives for a prosecution witness to lie. The danger is that the jury may, if such a suggestion is made and no motive is then found, consider the witness’ evidence to be the stronger as a result. Clearly such an approach would effectively reduce the burden on the prosecution. The correct approach is simply that, if there is no evidence of such a motive, that absence is neutral and should not be considered.

We would suggest that the use of such a test and the rhetorical question suggesting, as it does, that the judge considered he should look for one is unfortunate. As we have said, if there is clear evidence of such motive, that will be relevant to the determination of the witness’ credibility but, in the absence of any such evidence, the court should not look for it in case the absence appears to suggest he feels the evidence of that witness is strengthened as a result. Had this been trial by jury, the risk would have been considerably higher but we are satisfied that the judge’s reference to absence of motive was no more than an expression of his assessment of the defence challenge and did not place any burden on the defence to produce such evidence or suggest the need for it.

The third ground for Keke is that the judge failed properly to assess the credibility of the appellant in that he prescribed a test of motive as the relevant test for credibility. Mr Averre’s submissions to the Court made it clear that this was effectively subsumed in his submission on the previous ground with which we have dealt and we do not consider it further.

At the trial, the appellants Cawa and Lela challenged the admissibility of the records of interviews that had taken place on board a Royal Australian Navy vessel, HMAS Manoora, on 13 August 2003 in the case of Cawa and statements made on the Weather Coast and at Honiara on 2 October 2003 in the case of Lela. There was a trial on the voir dire and the judge concluded that each interview was voluntary and ruled it admissible.

Cawa appeals on the grounds that the judge erred in his conclusion because of inducement, his detention, that he was not told of the true nature and purpose of the interview, that he needed but was not provided with the services of an interpreter or a lawyer and that he was not adequately cautioned.

It is necessary to deal briefly with the circumstances of Cawa’s presence on the warship.

In 2003 the situation on the Weather Coast was extremely dangerous and unstable. During August of that year, a meeting was held at one of the villages between the Special Coordinator of the Intervention Mission, the Deputy Commissioner of Police and Keke, Cawa and other members of the GLF. In order to facilitate a surrender, it appears various assurances were given including that the members of the GLF would be safe and, if necessary, a police post would be established on the Weather Coast to ensure the safety of the supporters of the GLF. They were also told that they would have the opportunity to speak to the police about any grievances or allegations they wished to mention. In addition, there was to be a gun amnesty and it appears assurances were given that no attempt would be made to link any crimes with the surrendered guns.

Keke was persuaded to surrender in respect of a robbery in 1998 and he was allowed to be accompanied on board HMAS Manoora by others. Included in those was Cawa.

The interview was conducted in English and Pijin and continued over more than four hours including a number of breaks. The interview was recorded and a transcript was before the court. In the trial within a trial, the defence case had been that the assurances given to Keke and his men affected the mind of the appellant to the extent that it became an inducement. The submissions of counsel were summarised by the judge in his ruling on the voir dire. Having referred to the gun amnesty, he continued

'Mr Godbolt argued that that fact [the gun amnesty] combined with the accused being on the HMAS Manoora on the 13 August 2003 in the presence of RAMSI military personnel and police officers and being interviewed before certain criminal offences without a lawyer and being told he was a suspect were enough to conclude that there had been inducement though not intended to be the case by Mr McDevitt. Mr Godbolt argued that there is no evidence to suggest that these assurances had been retracted. This, being the case, he argued, the statements he made to the police in the interview conducted on 13 August 2003 must be excluded. Alternatively Mr Godbolt argued that section 5(2) of the Constitution had been breached in that the accused had not been told the reasons for his arrest and his detention and that being so, the statements the accused made to police must be excluded as unlawful and must be treated as not being voluntary and therefore should be excluded.'

In Lela’s case, the statements were made to the police at Kolina village on 2 October 2003, and subsequently at Central Police Station in Honiara and to the police at premises referred to as the Iron Bottom Sound Premises. The last interview was in the presence of a lawyer throughout. The judge summarised the defence case:

'The challenge is on the basis that the confession had been made as a result of promises and inducement held out to the accused and therefore the statements were not voluntarily given by the accused. In her final submission, his counsel, Miss Swift, referred to incidents which she said would amount to inducement held out to the accused by Superintendent Stafford of the Australian Federal Police. She cited the talk by Supt Stafford to the villagers at Kolina village on 2 October 2003 re-assuring them that the boys who had been taken earlier to Honiara were being looked after by RAMSI and that they were in school or something to that effect. She also cited a little later, that the villagers were told that the boys including the accused were going to Honiara to straighten a few things out and then would return home or something to that effect. The villagers were told not to worry. She also cited a later incident where Supt Stafford told the accused and his other three friends that they would be retrained, educated and looked after whilst in Honiara. In fact, they were told that they would be staying with Harold Keke at the Guadalcanal Beach Resort. The other incident of inducement, though general in nature, was the accused’s belief that his coming to Kolina was part of the peace process initiated by Mr Warner and Mr McDevitt and therefore was obliged to attend at Kolina village on 2 October 2003. ... The general thrust of the points raised by Miss Swift ... is that in the general context of the circumstances prevailing at that time on the Weather Coast, the peace process as explained by Mr McDevitt plus talks by Supt Stafford had induced the accused to give an interview to the police and thus affected his free will to make voluntary statements to the police. Lastly, Miss Swift argued that the fact the accused was not told of the reason for his arrest and detention was contrary to section 5(2) of the Constitution ...'

In each case the learned judge made a careful analysis of the evidence given both by the prosecution witnesses and the accused. Having considered them he was satisfied beyond reasonable doubt that the interviews were voluntary and admissible.

The judge correctly stated the test of admissibility as explained in Ibrahim v R [1914] AC 599 and formulated the question he had to consider as being whether or not the confession was obtained by express or implicit threat, promise or inducement offered by a person in authority. Having considered the effect of the Judges’ Rules he continued:

'It is question of fact for the courts to establish whether any confession, when challenged, was obtained under the threat of prejudice, promise or inducement held out to the accused by any person in authority. In Australia, the High Court stated that the test is not to ask whether the police officer concerned had acted improperly, and if so, whether it would be unfair to reject the statement of the accused. But rather to ask whether in the light of the conduct of the police officer concerned and in all the circumstances of the case, it would be unfair to use the statement of the accused against the accused; R v Lee [1950] CLR 133.'

He also reminded himself of the statements of Lord Salmon in DPP v Ping Lin [1976] AC 574:

'... that the state of mind of the police officer doing the questioning is irrelevant in terms of controlling the question of whether the statement was made voluntarily or not. Whether the threat was gentle or promise or inducement was slight does not matter. His Lordship said it was the state of mind of the accused that mattered in deciding whether the statement being challenged was voluntary or not. The conduct of the police officer concerned together with the circumstances prevailing in any particular case were the things that would light up the mind of the trial judge so as to see which way the issue should be decided. The Crown must prove beyond reasonable doubt that the statement being challenged was made out of the accused’s free will.'

Those passages we have set out correctly express the test the judge should apply in such a case. Counsel for the appellants do not challenge the manner in which he has directed himself but have confined themselves to the submissions made before the learned trial judge. As with other matters of evidence and assessment of credibility of witnesses, an appellate court is reluctant to substitute its own views based on the written record of the witnesses’ testimony. In this case, as we have stated, the learned judge applied the correct tests and we are satisfied that there was evidence upon which he could reach the decision he did. We do not consider there is any reason to challenge his conclusions.

A further challenge was made on the voir dire that the appellants’ rights under section 5(2) of the Constitution had been breached. Section 5 prescribes the constitutional protection of the right to personal liberty and subsection (2) provides:

'(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, and in a language that he understands, of the reasons for his arrest or detention.'

In the case of Cawa, the judge found that he was under arrest at the point he was told of the interview and being interviewed and he also accepted that the accused was a suspect for the murder of Fr Geve. He accepted that the 'lack of explanation to the accused [of] the reason for his arrest and detention would appear to be unconstitutional in terms of section 5(2)'. He continued:

'Whilst it is not disputed that there could be cases where non-compliance with the provisions of the Constitution may attract the exclusion of a police statement, the final say remains within the discretion of the trial judge. ...The point is that non-compliance per se with a constitutional provision is no reason for the exclusion of a police statement. ... There is no need to add to the relief already provided in the Constitution [by section 18] by equating the breach of the Judges’ Rules with breach of the Constitution...'

Counsel for Cawa submitted that, had the appellant’s interview continued after compliance with the constitutional provisions, it would have afforded some evidence that the appellant was informed and was voluntarily taking part in the interview. In the absence of that evidence, she submits the learned trial judge should not have been satisfied beyond reasonable doubt that the interview was voluntary.

We accept the logic of this submission. However, it is for the judge to determine, on all the evidence, whether the answers were voluntary. If he considers the answers may not have been, he must exclude the interview. If he is satisfied that they were voluntary, he must still decide whether to exercise his discretion to exclude or admit it. We are satisfied that the judge had that in mind when considering the breach of section 5(2) and exercised his discretion accordingly. There is evidence to support the manner in which that discretion was exercised. Similar considerations apply to the failure to provide an interpreter or a lawyer and we see no reason to criticise the judge’s conclusions.

There is no doubt that the situation in the country as a whole and in Guadalcanal in particular at this time was unusual and extremely difficult. It called for unusual methods and initiatives outside the normal scope of police investigations. In such circumstances it is vital that the courts ensure that the rights of the accused to a fair trial are not eroded. The way in which this is done is to consider all the methods used, both usual and unusual, and then to apply the usual tests to determine their propriety and fairness. The learned judge in this case clearly did so. He found the statements were given voluntarily and exercised his discretion whether still to exclude them after a careful and correct analysis of the evidence and submissions of counsel.

The final ground of appeal in the case of Lela is that the learned judge misdirected himself as to the law under section 21 (c) of the Penal Code in respect of parties to offences. That section provides:

'21. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say – ...

The learned judge cited the case of R v Coney [1882] 8 QBD where Cave J pointed to the requirement that to be a principal in the second degree there must be evidence of conduct pointing to assisting or abetting the principal of the first degree. He pointed out that 'where presence is entirely innocent or accidental there can be no evidence of aiding and betting. Where presence is on the face of it not accidental it is no more than evidence for the jury or the court.'

The judge then set out a passage from the judgment of Hawkins J in the same case and to the same effect:

'In my opinion, to constitute an aider and abetter, some active steps must be taken, by words, or actions, with intent to instigate the principal or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional. A man may unwittingly encourage another by his presence or by misinterpreted words or by gestures or by his silence or non-interference, or he may encourage intentionally by expressions or gestures or actions intended to signify approval. In the latter case, he aids and abets, in the former he does not.'

Although counsel suggests in the ground of appeal that the judge misdirected himself, she does not challenge the manner in which he reaches his decision but rather his conclusion regarding the sufficiency of the evidence.

Counsel suggests that the judge has wrongly concluded that he could infer intention from the mere non-accidental presence. In fact the learned judge set out the evidence upon which he found that Lela’s knowledge of the purpose of the visit to Haliatu and of his actions after the death of Fr Geve were sufficient to satisfy him that Lela was not simply an accidental bystander but intentionally aided and abetted Keke. He referred to other bystanders who had given evidence and correctly distinguished them from Lela.

'Can it be said that, in the light of the evidence against Francis Lela that he was at Haliatu witnessing the murder of Fr Geve unexpectedly or by chance? Any answer in favour of Francis Lela on that would clearly fly in the face of all the evidence against him in this case. The answer is clearly the negative, the answer is no. Can it be said that his presence was innocent in the context of simply being a bystander? Was he not guilty of anything that had to do with the death of Fr Geve? Again the evidence against him is to the contrary. He was a member of Harold Keke’s party from Inakona to Haliatu and back to Inakona and he knew the purpose of them going to Haliatu and that was for Harold Keke to kill Fr Geve.''

Court of Appeal of Solomon Islands

Keke v Regina [2006] SBCA 1; CA-CRAC 008, 009 and 11 of 2005 (25 May 2006)