Kelly v Regina [2006] SBCA 17; CA-CRAC 019 of 2006 (25 October 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands.
COURT FILE NUMBER:	Criminal Appeal No. 19 of 2006
DATE OF HEARING:	Tuesday 17th October 2006
DATE OF JUDGMENT:	Wednesday 25th October 2006
THE COURT:	Lord Slynn of Hadley P, McPherson JA Morris JA.
PARTIES:	BILLY KELLY KELLY -V- REGINA
ADVOCATES: Appellant: Respondent:	Nicholas Mirou Mr. Ken Averre and Amelia Faasau
KEY WORDS:
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:
PAGES:	1 - 12

JUDGMENT OF THE COURT

On 24th April 2003, six members of the Church of Melanesian Brothers went to the Weathercoast in search of another of their members who was believed to be held prisoner there by the Guadalcanal Liberation Front (GLF). The GFL was an insurrectionist group who had taken over control of this part of Guadalcanal and were illegally exercising powers of government and terrorising people in defiance of the authority of the regular government and laws of Solomon Islands. The appellants, who was 14½ years of age at the time was, and for some three or four months previously had been, a member of the GLF. One of the six Brothers who went to the Weathercoast was Patteson Gatu, who was shot and killed by the appellant on 25 April 2003 at Pite on the Weathercoast.

The appellant was tried in July 2006 before the Chief Justice, who on 4 August 2006 delivered judgement convicting the appellant of murder, and sentenced him to life imprisonment. This is now his appeal against that conviction and his application for leave to appeal against that sentence.

It is necessary first to refer to other proceedings that took place prior to the appellant’s trial before the Chief Justice. In addition to the appellant, a number of other members of the GLF were convicted of murdering the six Brothers, whose killing took place on 24 or 25 April 2003. One was a man named Ronny Cawa, who was the local commander of Pite, and who on 25 April 2003 gave the appellant the order to shoot Patterson Gatu. Cawa has since been tried and convicted along with others for the killings on these occasions. It is also necessary to refer to the fact that, prior to the trial in July 2006 before the Chief Justice, application was made to the High Court for a stay of the proceedings in the form of the pending prosecution against the appellant for the murder of Patteson Gatu. The application came before Naqiolevu J, who dismissed it on 12 July 2005. The trial of the appellant and his conviction followed a little over a year later on (as I have said) 4 August 2006.

The first complaint on appeal is that the decision of Justice Naqiolevu was wrong in refusing the stay of the prosecution against the appellant. This at once confronts various difficulties, notably that s.20 of the Court of Appeal Ordinance 1978 confers, on "a person convicted on a trial," jurisdiction in criminal cases to appeal to this Court (a) against conviction on a question of law; (b) with leave, against conviction on a question of fact; and (c) with leave, against sentence. The refusal on 12 July 2005 of a stay of the prosecution proceedings was not a conviction at trial within the meaning of s.20 of the Ordinance, so that the appellant was and is not competent to appeal in respect of it. Another difficulty is that the proceedings against which a stay is sought on this appeal have been concluded by trial, conviction and sentence. It is not easy to see what is left to be stayed. All that now remains is the balance of the sentence to be served. It is not by any means clear that the power of the Court extends to permanently staying execution of a sentence regularly imposed and entered. Especially is this so when the Ordinance permits an appeal by leave against sentence and such an appeal has been instituted. It is plainly undesirable that an appeal against conviction should be entertained under the guise of an appeal against sentence. That has always been the attitude of the Court towards attempts to challenge the validity of convictions by using collateral challenges; for example, by proceedings for habeas corpus or certiorari.

Leaving aside these difficulties, some of which appear to be insuperable, the appellant seeks to found a ground of his appeal essentially on matters which were or could have been raised before Naqiolevu J, or perhaps (but were apparently not) raised before the Chief Justice. This is that the prosecution ought to have been stayed for reasons personal to the appellant given his age and maturity (or lack of it) at the time; the fact that this was an "international prosecution", which was "oppressive" and "prejudicial" to the appellant, and in breach (so it was said) of international norms and standards; and that it resulted in the imposition on the appellant of a sentence of imprisonment for life, which is the penalty mandated under the Penal Code. For reasons that will become apparent it is convenient to defer consideration of the last issue to the appeal against sentence.

There can be no doubt of the existence of a jurisdiction in the Court to stay criminal proceedings for abuse of that process. All of the leading common law jurisdictions recognise this to be so. It is enough here to refer to Jago v District Court of New South Wales (1989) 169 CLR 23 (Australia) and R v Croydon Justices, ex p Dean [1993] QB 769 [C.A., England], which relies on what was said by Richardson J in Moevao v Department of Labour [1980] NZLR 464, at 482. No one doubts the breadth of the power or the variety of the circumstances capable of being considered in exercising the jurisdiction. So far, the cases have been concerned mainly with excessive delay, ulterior motives for instituting or continuing prosecutions, breach of undertakings not to prosecute, and the like, although these categories are by no means to be regarded as closed or exhaustive.

The problem here is in identifying precisely the circumstances that are said to enliven the discretion in the case of the appellant. Essentially, they come down to this. The appellant was a young man of only 14½ years at the time he committed the offence and it is submitted was still too young at the time of the prosecution, taken in the context of his personal background, to understand the nature of the proceedings that resulted in his conviction and sentence of life imprisonment. This is said to have made the proceedings oppressive. Additionally, there is the "international" dimension of the prosecution.

It is convenient to deal with the last aspect first. There is no doubt of the "international" dimension of the appellant’s arrest, indictment, prosecution and trial. Without the intervention of multinational military and police forces, it is doubtful whether law and order would have been re-established or applied in Solomon Islands. That process was, however, provided for and took place under the authority of an Act passed by the Parliament of Solomon Islands in the form of the Facilitation of International Assistance Act 2003. It provide expressly in s.57(i) that armed forces and police members of the visiting contingents might exercise any powers exercisable by police officers appointed under the Police Act. See also s.18 of the Act. There is no suggestion anywhere that in this case the military or police exceeded these powers. As regards, counsel and solicitors involved in this prosecution, they were enrolled in the Public Service of Solomon Islands, with all the authority that it entails of the Constitution, s.91 (5). The offence or offences prosecuted were subject to the Penal Code and were conducted and defended in accordance with its requirements and those of the requisite local legislation regulating such matters. No complaint to the contrary has been advanced on this appeal.

What is said to be relevant in this context is a consideration of the international treaties and conventions relating to the treatment of children in a position similar to that of the appellant at his trial.

Such treaties and agreements may provide interpretative assistance in applying local law. But, disregarding occasions of ambiguity, they cannot control or displace the positive provisions of Solomon Islands law under which the prosecution was instituted and the trial of the appellant took place. By s.200 of the Penal Code, murder is, the circumstances specified in Part XX, and subject to Part IV of the Code, constituted an offence. There is no doubt that on the face of it the appellant was rightly convicted under the Code of murdering Mr Gatu, and no point is taken on appeal about the proof at trial of his having done the act of killing with the relevant intention specified in the Code so as to make it murder.

The only identifiable defence, or matter of exemption or exculpation of the appellant, that was or might have been raised by him at the trial was compulsion in terms of s.16 of the Code. Section 16 exempts a person from criminal responsibility if the act (in this instance the killing) is done under compulsion by threats to kill him (the offender) or to do him grievous bodily harm. The learned Chief Justice held that on the evidence this defence was not available to the appellant. The appellant had joined the GLF voluntarily and subjected himself to the discipline for two years. In killing Gatu by shooting him in cold blood he was following the orders of the commander of that force at Pite, who was Ronny Cawa. The Chief Justice found no evidence to suggest that the appellant feared reprisals if the order was not obeyed. What was uppermost in his mind at that time was, his Lordship said, "His desire or determination to obey or comply with the order given." He was merely following orders. It was not suggested, nor could it have been, that superior orders constituted a defence to a charge of murder of a prisoner or captive like Mr Gatu.

His Lordship’s consideration of s.16 of the Code was in accordance with the decisions of the Court of Appeal in Kejoa v R [2005] SBCA 6; and Hese v R (2005) CASI – CC 32 of 2005. On appeal, counsel for the appellant did not challenge the trial judge’s decision on that point. However, following a suggestion of the Court on the appeal hearing, if he wished to raise it, the appellant sought and was granted leave to amend the notice of appeal to rely on the circumstance that (unlike the offenders in the two cases cited) the appellant was a young person of only 14½ years at the time of the offence. As such, he may have been more susceptible to manipulation by an order to kill than would be a person of more mature years and wisdom. There may well be substance in such a submission in appropriate cases. Unfortunately, the point was not raised in this way at the trial. As a consequence, the material needed to make it good was not presented at trial and is not before us now. There is a dearth of evidence on critical matters about the appellant’s state of maturity, vulnerability and education, and about his appreciation or otherwise of the tragic consequences of his obeying the order given to him on 25 April 2003. Without adequate information, perhaps psychiatric, of this kind, it is not possible on appeal now to conclude that the outcome could or might have been different if the point had been raised at the trial. On the evidence before him, the learned Chief Justice was justified in finding and in holding in accordance with the decisions of this Court that s.16 had no application to the appellant.

This leaves for consideration the propriety of prosecuting the appellant for a murder committed at so young age, having regard to his understanding and appreciation of the nature of the proceedings in which he was tried. Solomon Islands has acceded to the Convention on the Rights of the Child, which came into force on 2 September 1990. The Convention has not, however, been ratified by Parliament so as to incorporate it into the domestic law of Solomon Islands. As most, therefore, it serves as a guide to the procedure to be followed in case of this kind at common law or under statute. In fact, the only relevant provision of real consequence is article 37 (a) providing that life imprisonment "without possibility of release" shall not be imposed on a person under 18 years who commits an offence", but this is relevant to the sentencing of young offenders rather than to their prosecution or conviction. The International Guidelines for the Administration of Juvenile Justice 1985 (the "Bejing Rules"), which do not constitute the terms of a binding treaty, lay down desiderata which appear to have been complied with in the appellant’s case. So far as relevant here, those rules are again material only in relation to sentencing. In addition, reference was made to an Amnesty International policy paper on the prosecuting of child soldiers. It does not possess authoritative status in international law or in Solomon Islands law except as the opinions of persons who are expert in the subject in question. The emphasis in paragraph 6 of the paper is that "where persons under 18 acted entirely voluntarily, and were in control of their actions, they should be held to account for their actions in the appropriate setting." Paragraph 6.1 remarks that the Convention on the Rights of the Child "does allow young people to be prosecuted if the procedure can be fair and takes into account the particular needs and vulnerability of young people."

From this we turn to the particular provisions of the law under which the appellant was prosecuted in this matter. Section 5 of the Penal Code provides that its provisions apply to every place within Solomon Islands. By implication, therefore, those provisions extend to every person committing an illegal act within the limits of Solomon Islands. That is, and for long has been, the general rule of law: see Campbell v Hall [1774] EngR 5; (1774) Lofft 655, at 741, 98ER 848, at 895. Section 14 of the Code introduced exceptions to that rule in respect of persons under the age of eight and 12 years. Because the appellant was 14 ½ years neither exception is relevant here. The appellant was under the Code therefore criminally responsible to the full for his murder of Mr Gatu. The law on this point is clear and there is no ambiguity in it that would permit recourse to international law in order to interpret or alter it even if it laid down a different norm altogether.

The only point at which any relevant divergence arises is that international law treats person under 18 as "children" or "young person" for the purpose of criminal responsibility, prosecution and punishment. In the present case, the appellant was 14½ years old at the time of the murder but almost 17¾ at the time of his trial and conviction some three years later. In other words, he was not far short of 18 at the time he was prosecuted. There has been no attempt to show he did not understand the nature of the proceedings or their significance. He was represented by counsel at the trial, and also in the earlier proceedings seeking a stay. It was not suggested that he had difficultly giving instructions or receiving advice from him. He was tried in the High Court before the Chief Justice in accordance with what may be described as standard common law procedure that accorded with the Beijing Rules. No suggestion was made that the prosecution or the trial was conducted in any way that was in that respect unfair to him or different from other cases of the same or any other kind.

In these circumstances it is not possible in our opinion to say that the prosecution or the trial was oppressive, unfair or unjust to the appellant. The question of sentence is a different matter, and to this we now turn our attention.

Section 200 of the Penal Code provides that a person who, of malice aforethought, causes the death of another person by an unlawful act is guilty of murder "and shall be sentenced to imprisonment for life." It has been held that this mandatory sentencing rule does not contravene s.10 (1) of the Constitution of Solomon Islands: Gerea v DPP (1984] SILR161. The learned Chief Justice evidently considered he was bound by s.200 of the Code to impose a sentence of life imprisonment on the appellant for the murder of Mr Gatu. This requires a consideration of provisions of the Juvenile Offenders Act 1972 and the relationship of those provisions to s.200 of the Penal Code.

The Juvenile Offenders Act introduced a special regime for dealing with offenders defined in s.2 as those under the age of 18 years ("a young person") and those under 14 years of age ("a child"). This statutory regime is plainly designed to ensure that in dealing with them for offences such child and young offender are treated differently from and more sensitively than adult offenders would be and are in similar circumstances. In this way the Act gives effect to the obligations of Solomon Islands under international treaties and conventions, as well as to the provisions of the Constitution in s.5 (1) that a person is not to be deprived of his personal liberty save:

"(a)...

(g) in the case of a young person who has not attained the age of eighteen years, under the order of a Court ... for the purpose of his education or welfare."

The appellant was a young person within that provision and the Act generally.

The pivotal section of the Act is section 16, which provides that when a child or young person is found to have committed an offence, "the Court shall take into consideration the manner in which, under the provisions of this or any other Act or law.... the case should be dealt with and, subject to such provisions, may deal with the case in any of the following manners". Those manners include, in paragraph (i), by committing the offender to custody in a place of detention, or (j) where the offender is a young person, by sentencing him to imprisonment.

The effect of s.16 confers is not to alter the provision s.200 of the Penal Code that murder is to attract a sentence of life imprisonment. That is so because, although s.6 plainly confers a discretion on the Court ("may deal with the case"), the power to do so is expressly made "subject to the provisions of this or any other Act or laws." The result seems therefore to be that the provision in s.200 of the Penal Code for mandatory life imprisonment in the case of murder continues to prevail.

This is however, to reckon without s.13 of the Juvenile Offenders Act of 1972. It provides for detention in the case of grave crimes committed by children or young persons, and is as follows:

"13. Notwithstanding anything in this Act to the contrary, when a child or young person is convicted of a grave crime, the Court may sentence the offender to be detained for such period as may be specified in the sentence; and where such sentence is passed the child or young person shall, during that period, notwithstanding anything in the provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may in his discretion direct, and whilst so detained shall be deemed to be in legal custody."

Section 14 then proceeds to confer on the Minister the power to discharge from detention the person so detained under s.13 on what may be described as a revocable licence.

It is apparent that the introductory words in s.13 "Notwithstanding anything in this Act to the contrary," are directed principally if not exclusively to s.16 of the Act. As we have seen, the powers s.16 confers are expressly made subject to the provisions of this or any other Act. To that extent, mandatory life imprisonment imposed by s.200 of the Penal Code is preserved. But in making s.16 subject to the provision of "this Act," s.16 is in terms expressly made subservient to s.13 of the Juvenile Offenders Act. Section 13 is directed specifically to the class of child or young offenders who have been convicted of a "grave crime", which is defined in s.2 of the Act, in the Schedule so as to comprehend a series of six major forms of offences, of which murder is one. In dealing under s.13 with a child or a young person who is convicted of murder, the Court "may’" sentence the offender to a period of detention (rather than imprisonment) under conditions that the Minister may determine.

There can be little doubt that, approached in this way, s.13 qualifies not only s.16 of the Act but also s.200 of the Penal Code in imposing mandatory life imprisonment for a murder committed by a child or young person. Section 13 of the Act deals specifically with particular class of individual, namely those under 18 years of age who commit a murder. It is later legislation enacted after and subsequently to the Penal Code. On ordinary principles of interpretation, and for each of these reasons, s.13 therefore takes precedence over s.200 of the Code. To the limited extent prescribed in s.13, the mandatory sentencing rule in s.200 is impliedly repealed or displaced. To the extent that there is any ambiguity or question about this result, it is confirmed or required by s.5 (1) (g) of the Constitution, and, if need be, also by international treaties and conventions on the subject. Indeed, if s.13 of the Act is not given the interpretation adopted here, it serves no purpose at all, and might as well not have been enacted. Some meaning and effect must be given to it, and in our view it is to be read as qualifying the mandatory terms of s.200 of the Penal Code as regards life imprisonment in the case of the grave crime of murder committed by a child or young person.

In sentencing the appellant to life imprisonment, it appears that his Lordship was not referred to the Act or to the provisions of s.13. Indeed, the life sentence was imposed on 4 August 2006 contemporaneously with his Lordship’s judgment convicting the appellant of the offence of murder, and without any submission on the matter of sentence having been received. In imposing that sentence His Lordship said simply "As there is only one mandatory sentence, he is sentenced to life imprisonment." In law, however, s13 of the Act conferred, at the very least a discretion ("may sentence...") to sentence the offender to a specified period of detention, with the consequences provide for in s.13 and s.14 of the Act.

The result is that, while dismissing the appellant’s appeal against conviction, we consider that the appeal against sentence should be allowed. The orders that should be made are as follows:

(1) Appeal against conviction dismissed.

(2) Allow the appeal against sentence by setting aside the sentence of life imprisonment imposed on 4 August 2006.

(3) Remit the matter of sentencing the appellant to the Chief Justice or other Judge of the High Court for sentencing according to law.

Lord Slynn of Hadley P
McPherson JA
Morris JA