Robu v Regina [2006] SBCA 14; CA-CRAC 024 of 2005 (25 October 2006)

	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of Solomon Islands

NATURE OF JURISDICTION:	Appeal from an Order of the High Court of Solomon Islands.
COURT FILE NUMBER:	Criminal Appeal No. 24 of 2005
DATE OF HEARING:	Wednesday 18th October 2006
DATE OF JUDGMENT:	Wednesday 25th October 2006
THE COURT:	Lord Slynn of Hadley P. McPherson JA. Morris JA
PARTIES:	ROBU, FARAMASI, MAENU & KA’ABE -V- REGINA
ADVOCATES: Appellant: Respondent:	Mr. K Averre for Appellant Mr Talasasa for Respondent
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	Dismissed
PAGES:	1 - 11

1. The appellants appeal their convictions before the High Court on the 20th of July 2005 for the murder of Dumen Maetala who died on the 20th of June 1998 at the Bushman Club Honiara.

2. The facts which the trial judge found established can be stated quite shortly.

3. The deceased went to the club early in the morning of the 20th June. He met up with a Mr Moa. The club is an open building with a bar and dance floor. The inside area is lit by lights above the bar, a rotating light above the dance floor and by long fluorescent tube lights under the eaves of the building. Outside of the building are a number of large security lights.

4. Mr Moa and the deceased danced. They drank beer. They heard a sound like a shotgun going off. Both went to find out what was happening. A can of beer was thrown at them. A group of men moved towards them. They tried to leave the club but were prevented from doing so by the presence of this group. A second group of men approached them. Effectively they were blocked in the club.

5. Members of these groups attacked the deceased. Each of the appellants joined in this attack. The deceased was struck with a piece of timber, a baton and a stool. He was repeatedly kicked. He was rendered unconscious.

6. The deceased was taken to the Central Hospital. He was clearly seriously injured. The examining doctor considered he had received at least one severe blow to the head. He died about three p.m. on the 20th of June. Severe brain injury was the cause of his death.

7. The Crown case at trial was each of the four appellants were in the group which attacked the deceased, the intention of the group being either to kill him or cause him grievous bodily harm. That all members of the group had "malice aforethought" as required by Section 202 of the Penal Code. Accordingly each was guilty of murder.

8. The appellants Robu Maenu and Ka’abe acknowledge they were at the club on the 20th of June. They denied doing anything to the deceased. The appellant Faramasi claimed he was at home asleep at time deceased was attacked.

9. All accused gave evidence to support their denials. Mrs Faramasi gave evidence supporting her husband’s claim to have been at home when deceased was attacked. Their evidence was in effect the same as what they had told police when enquiries were being made into this incident.

1. The learned trial judge erred in that His Lordship failed to direct himself as to the effect of the delay within the proceedings in that the prosecution evidence was heard in October 1999 and the trial remained part heard up to June 2005 when the evidence concluded. The learned trial judge erred in not considering a stay of proceedings or ordering a retrial. The Appellants did not receive a fair trail within a reasonable time as guaranteed by the Constitution of Solomon Islands.

2. The learned trial judge erred in that His Lordship failed to direct himself as to the contradictions and inconsistencies displayed by the complainant during cross-examination and to the effect of previous inconsistent statements.

3. The learned trial judge erred in that his Lordship failed to direct himself as to, or to consider, or appreciate, the inconsistencies and infirmities in, and the unsatisfactory nature of the prosecution case.

5. A miscarriage of justice has ensued and the appellant has been denied a fair trial according to law as a result of the cumulative effect of the above matters.

6. The charges were not proven beyond reasonable doubt and/or the verdicts are unsafe and/or unsatisfactory and/or against the evidence.

11. Grounds 2-6 (inclusive) are not established. We did not require Mr Talasasa to respond to them. The trial judge carefully considered the evidence on each of the issues raised and correctly directed himself in law. The evidence clearly established the facts we have earlier outlined.

12. Ground 1 has concerned us. It involves a question of delay and its possible effect upon the trial. It is necessary therefore to consider the chronology of events once the trial started.

13. The trial commenced on the 11th of October 1999. There is no suggestion of any pre-trial delay. The Crown case concluded on the 30th of May 2005. On the 31st of May the defence opened its case. Final submissions were heard on the 30th June 2005. The trial judge delivered his decision on the 20th of July 2005.

14. Mr Averre submits notwithstanding no application for a stay of proceedings was made to him the trial judge should have stayed the trial. He submits correctly the case concerned the credibility of prosecution "eye" witnesses who identified all appellants as taking part in the assault on the deceased. He points out that apart from the Pathologist’s evidence the Crown evidence was completed by October 1999. He submits the delay of over 5 years from the time the Crown "eye" witnesses gave their evidence to when the appellants gave theirs was tantamount to an abuse of process and that the failure of the trial judge to stay the proceedings has resulted in a miscarriage of justice.

15. It is well established and not disputed a trial judge may order a stay of proceedings either before or during trial provided an accused can show on balance of probabilities the delay complained of has resulted or will result in his suffering serious prejudice to the extent that he has not or will not receive a fair trial. In other words the continuation of the proceedings amount to an abuse of the process of the Court.

"that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all." R v Horseferry Road Magistrates" Court, Ex p Bennett [1994] 1 AC 42.68. In such a case the court must stay the proceedings. But this will not be the appropriate course if the apprehended unfairness can be cured by exercise of the trial judge’s discretion within the trial process. Attorney General’s Reference (No 1 of 1990) [1992] 1 QB 630. Neither of these cases was based on the Convention, but neither is in any way discordant with the conviction will be quashed: Mohammed v The State [1998] UKPC 49; (1999) 2 AC 111, 124; R v Forbes [2000] UKHL 66; (2001) 1 AC 473, 487, para 24; Mills v HM Advocate [2002] UKPC D2; (2002) 3 WLR 1597, 1603, para 12. This is what domestic law requires, and what the Convention requires.

17. If the court were satisfied, before an impending trial, that the prosecution had been guilty of serious delay such as to cause serious prejudice to the accused, to the point that no fair trial could be held, or if the authorities were shown to have acted in such a way as to render any trial of the defendant unfair in the circumstances, further proceedings would be restrained as an abuse of the court’s process by imposition of a stay. If such abuse were shown after the trial, any resulting conviction would be quashed. Such is the rule in domestic law, and it is uncontroversial. It is consistent with the Convention. But it rests, in Convention terms, on the fair trial guarantee and not on the reasonable time requirement.

20. It is a powerful argument that, if a public authority causes or permits such delay to occur that a criminal charge cannot be heard against a defendant within a reasonable time, so breaching his Convention right guaranteed by article 6(1) of the 1998 Act. Not surprisingly, that argument has been accepted by highly respected courts around the world. But there are four reasons which, cumulatively, compel its rejection. First, the right of a criminal defendant is to a hearing. The article requires that hearing to have certain characteristics. If the hearing is shown not to have been fair, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If the hearing is shown to have been a tribunal lacking independence or impartiality or legal authority, a conviction can be quashed and a retrial ordered if a fair trial can still be held. If judgment was not given publicly, judgment can be given publicly. But time, once spent, cannot be recovered. If a breach of the reasonable time requirement is shown to have occurred it cannot be cured. It would however be anomalous if breach of the reasonable time requirement had an effect more far-reaching than breach of the defendant’s other article 6(1) rights when (as must be assumed) the breach does not taint the basic fairness of the hearing not all, and even more anomalous that the right to a hearing should be vindicated by ordering that there be no trial at all.

16. Section 10 of the Constitution of the Solomon Islands provides for the right to a fair hearing within a reasonable time. It states:

10. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, that person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

17. Factors to be taken into account in determining whether a defendant has been afforded a fair hearing within a reasonable time include the length of the delay; the reason for the delay; the defendant’s assertion of his right; and any prejudice to the defence.

Kimisi –v- Director of Public Prosecution Criminal Appeal Case No. 67 of 1990.

18. The consequences of a breach of the right to a trial within a reasonable time does not automatically give rise to a stay of process. Attorney General, Reference No. 2 of 2001 2003 UKHL 68.

19. We consider the following matters to be relevant in considering whether the appellants have established the trial judge should have ordered a stay of the proceedings and the allowing of the trial to continue has resulted in an abuse of process and a miscarriage of justice.

20. Firstly, at no stage was a formal request for a stay of the proceedings made to the trial judge. The record shows in July 2004 defence counsel made mention of a trial within a reasonable time and the question of a nolle. In January 2005 he is recorded mentioning "striking out for want of prosecution" on the day the Crown case closed he said -

"Extraordinary delay deeply prejudices my clients. I have 22 witnesses in 1999. I have found 2 Defendant witnesses. I seek a further adjournment to find those witnesses. I did not wish to make a no case to answer think it could be made in respect of 2 of them. I will leave it to closing addresses. Delay was prejudiced my clients. I ask for adjourn tomorrow morning."

I submit that estimate delay would warrant acquittal under s.10(1)(2)(f) of the Constitution apply. Trial was not concluded within a reasonable time. Lapse of time is relevant. Defence witness not expected to give evidence over 7 yrs as in this case. It is an objective test. It is an objective test. This is a unique case. Defence case was conducted after lapse of time. There was a delay at commencement of trial.

We consider these recorded remarks show counsel clearly considered the position. Having done so he has elected to continue with the trial no doubt hoping for an acquittal. The appellants cannot now complain of a course deliberately taken.

21. Secondly, although defence counsel indicated witnesses previously to him were no longer available he opened his case. The trial judge was not told anything of the evidence the witnesses would give and how it impacted on the issues. Likewise we have been told nothing.

22. Thirdly, the evidence given by the accused was effectually the same as they had told police when interviewed. It would therefore have been known to the trial judge from early in the trial and he would have been alerted at a very early stage where contest lay.

23. Fourthly, the delay in completing the trial was not the fault of either the Crown or the defence. It was due mainly to the exceptional circumstances of the break down of law and order in the country during the years 2000 to 2004. The judge at the commencement of his judgment said –

Kabui, J. The hearing dates of this case clearly show the history of the trial of the accused. The trial has taken more than five years to complete. All the accused had been released on bail since 14th June 2000 as a result of the coup that took place on 5th June 2000 and the subsequent taking over of the Rove Prison by the Malaita Eagle Force resulting in the walkout of all the inmates therein including the accused. The bail had lapsed and had not been renewed until recently when Counsel, Mr. Lavery, told me in court on 16th July 2004 that two of the accused, John Robu and Peter Ka’abe were on bail. The other two Henry Faramasi and Lency Maenu’u were still at large but fortunately attended at the trial when it recommenced. The trial had been adjourned since 1999 to allow the Prosecution to call the last Crown witness, the doctor, who examined the deceased. The doctor then was in Australia and was not available to give evidence in Honiara. Counsel for the defence, Mr Lavery, had insisted that he wanted to cross-examine this witness. The breakdown of law and order in the country was the main contributory factor in the delay in the completion of the trial. Government finance was also a problem. The trial resumed only after the intervention of RAMSI in 2003 and the return of law and order that followed. This is most unfortunate but that is the truth. None of the accused objected to my continuing with trial after the long adjournment. In other jurisdictions where there is trial by jury, this situation may well qualify for a mistrial which calls for a fresh trial. This is not the case here because I sit as the trial judge as well as the jury so I have not forgotten the evidence already given by the Crown witnesses whose evidence had been heard by the accused and cross-examined by them through their Counsel, Mr. Lavery. The Prosecution had not yet closed its case when the trial recommenced.

24. Fifthly, this was a trial before a judge alone. There is nothing to support a contention he had forgotten the Crown evidence or his recollection of it was incorrect when appellants gave their evidences. In his judgment he specifically says he had not forgotten the evidence of Crown witnesses when trial resumed. He would have had his notes to refer to.

25. In his judgment the trial judge deals at length with all points raised by the defence. He refers in detail to the evidence of all witnesses. It is abundantly clear he had a clear recollection of what each witness had said.

26. While therefore we are concerned it took so long to complete this trial and the delay between the hearing of the Crown "eye" witnesses and the defence witnesses can be criticised, we are satisfied that no ground has been made out which would have justified the trial judge discontinuing the trial. The appellants have not shown any delay has resulted in their being prejudiced in their defence. We are satisfied they did receive a fair trial. No miscarriage of justice has been established.

Court of Appeal of Solomon Islands

Robu v Regina [2006] SBCA 14; CA-CRAC 024 of 2005 (25 October 2006)