Ligabutu v Regina [2006] SBCA 19; CA-CRAC 002 of 2006 (23 November 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. 2 of 2006
DATE OF HEARING:	Tuesday 24th October 2006
DATE OF JUDGMENT:	Thursday 23rd November 2006
THE COURT:	Lord Slynn of Hadley P, McPherson JA, Morris JA.
PARTIES:	RAYBOE LIGABUTU, DAVID HICKS HONITELE, JOSEPH MIAVANA, PAISI MIAVANA (APPELLANTS) V REGINA (RESPONDENT)
ADVOCATES: Appellant: Respondent:	C. Baker S. Lawrence M. Swift M. McColm
KEY WORDS:	Murder, manslaughter, participating party, common purpose
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED: Dismissed/Allowed	Rayboe Ligabutu: Allowed David Hicks Honitele: Allowed Joseph Miavana: Dismissed Paisi Miavana: Dismissed
PAGES:	1-12

JUDGMENT OF THE COURT

The four appellants are Paisi Miavana (for whom Mr Baker of counsel appears), Joseph Miavana (Mr Lawrence of counsel), Rayboy (or Roboe or Rayboe) Ligabutu and David Hicks Honitele, both of whom were represented on appeal by Ms Swift of counsel. Each of the appellants, who did not give evidence themselves, was convicted at a trial before Commissioner Chetwynd in September 2005 of the murder of Brian Majaposo in 2001. The deceased was killed by a single shot fired from an M16 rifle discharged by William Amalo, who was himself later killed by the police. In killing his victim, it is accepted that Amalo was guilty of murder; that is, he shot Brian with the intention of killing him. The question at trial was whether the appellants or any of them was in law also criminally responsible for that murder either as a participating party under s 21 of the Penal Code, or as a joint offender sharing in the prosecution of a common purpose under s 22 of the Penal Code.

The facts proved at trial and accepted by the Commissioner were these. At about 5 pm on 5 October 2001 a boat powered by an outboard motor arrived at the village of Mbarabarakakasa in Choiseul. It was carrying Amalo and the four appellants. On arrival, Amalo fired a shot or two from the rifle and he and the two brothers Paisi and Joseph Miavana went looking for a man named Lukeson Kube, with whom one or more of them had a dispute over payment of custom compensation money. Lukeson was elsewhere that day, or nowhere to be found at the village. Thereupon Amalo turned his attention to Lukeson’s cousin brother Paul Harry Pope. Amalo menaced him with the rifle and pointed or "butted" the barrel against his forehead.

With good reason Pope became convinced he was about to be shot. He grabbed the rifle held by Amalo, and a struggle ensued between Pope and Paisi and Joseph, who came to Amolo’s aid. Amalo aimed a shot at Pope, who quickly moved out of the way, with the result that the bullet narrowly missed his leg. Pope held on to one of the brothers Miavana and used him as a shield to prevent himself being shot. Amalo fired another shot or shots into the air and then ran out of ammunition. He returned to the boat, in which Ligabutu and Honitele had remained after arrival, and obtained further ammunition there.

At this stage one or both of Paisi and Joseph were holding Pope. Other villagers saw Amalo returning from the boat with the reloaded rifle and they shouted a warning to Pope, who broke free and ran away with Paisi and Joseph in pursuit. In the meantime, Brian Majaposo, who was prominent in the village, had come on the scene and tried to engage Amalo in conversation. Instead, Amalo shot him in the abdomen, from which wound he died not long afterwards. Before shooting him, Amalo told Paisi and Joseph to move out of the way, which they did. Some further shots were fired into the air and at property in the vicinity, before the appellant and Amalo departed in the boat.

On the following day, a sergeant of police and a constable arrived from Taro to find out what had happened. They took statements from several of the villagers, who later gave evidence on behalf of the prosecution at the trial. Their statements were given in Pidgin but recorded by the police in English and then read back to them in English before being explained in Pidgin, after which they each signed them or made his mark.

Much attention was naturally given by counsel at the trial (which took place some four years after the event) to discrepancies and inconsistencies between their evidence at the trial and the written statements given by those witnesses to the police and in further statements taken from them later on. In the course of cross-examination the witnesses explained those differences on the basis principally that they had told the police of certain other matters, but the police had failed to include them in their statements in 2001. The further statements were taken from them and other witnesses in 2004 and 2005, which was after law and order had been restored following the intervention of the Ramsi forces.

The Commissioner accepted the evidence of some of the prosecution witnesses as reliable, but he did not accept the evidence of other witnesses for reasons which he gave. He accepted the explanations for the discrepancies in the first set of statements on the basis that they were in the nature of preliminary statements preparatory to further inquiry by officers of the CIB, whose task it was to investigate the incident. It is right to say that the Commissioner considered that some of the cross-examination was unduly prolonged and repetitive to the point at times of being oppressive, and he said so. The latitude to be permitted to cross-examining counsel is wide, but there undoubtedly is a judicial discretion to disallow questions that are oppressive and such as would not, in the opinion of the court, affect the credibility of a witness about a matter as to which he or she was required to testify. Here the Commissioner, who was the tribunal charged with deciding matters both of fact and credit, was evidently of opinion that nothing further was to be gained by constantly reiterating questions about why particular matters were not contained in the witness statements taken by the police at an early stage of the investigation many years previously. The witnesses were unsophisticated villagers, and the process of questioning them cannot be compared with the sort of forensic confrontations between counsel and experienced police officers that take place in courts of petty session in Darlinghurst. There is nothing here to show that counsel for the appellants at trial were unfairly restricted in the questions they were reasonably entitled to ask in cross-examination, or that the Commissioner exercised his authority or discretion in a way that was improper, illegitimate or prejudicial to the defence of the accused: cf Hooper v Gorman [1976] 2 NSWLR 427, 440-441.

This challenge on appeal to the decision of the Commissioner is part of a more general complaint that the convictions were unsafe and against the weight of the evidence accepted by the Commissioner as reliable. We are far from persuaded of this submission; but it is related among other matters to a specific ground advanced by each of the appellants that the Commissioner erred in relation to prior inconsistent statements by using them as evidence of their truth, as distinct from treating them as going to credibility only. The point is made that in recounting the evidence he accepted and the findings he made, the Commissioner commenced his analysis by saying "From the early statements made in this case and from the evidence given in Court, I find ...". It followed, or so it was submitted, that the Commissioner had erred in relation to the "hearsay rule". That characterisation is mistaken because the hearsay rule excludes the admission only of statements made out of court by persons not testifying as witnesses. The real objection is that the Commissioner used earlier statements made out of court by the witnesses not merely to bolster their credit but as evidence of the facts they contained.

The primary problem on appeal is to ascertain the precise character in which these "early" written statements to the police were admitted in evidence and from whom. The written submission by Mr Lawrence on behalf of Joseph Miavana refers to "statements tendered in cross-examination of Crown witnesses to demonstrate prior inconsistencies". An examination of the trial record leaves it uncertain exactly when or by whom ex 2 (statement dated 6 October 2000 by Paul Pope) was tendered; but it must have taken place early in the trial because of the exhibit number assigned to it. The position is different as regards exhibits 3(a) and 3(b) (being statements given by Joseph Lauga on 6 October 2001 and 5 February 2002), which the record shows were tendered in cross-examination by Mr Baker. However, the same difficulty also affects statements given by Clearance Potobase, Felix Kojemama and Polycap Kimata (ex 6, 7, 8, 13 and 14). On the assumption (which seems reasonable) that the statements in question were tendered by defence counsel and not by the prosecution, it is not, in our view, possible to regard them generally as statements by those witnesses that are inconsistent with their present testimony. The cross-examination of those witnesses was directed not to inconsistencies in their prior statements, but to the fact that their prior written statements omitted to say anything about a matter or matters about which the witnesses gave evidence in court at the trial. Those statements were, therefore, not within the meaning of s 4 of the Criminal Procedure Act 1865, "inconsistent with" their present testimony. They were consistent with them but incomplete.

The early written statements to the police could therefore not have been admissible or admitted under that statutory provision, but only, we consider, as suggesting a recent invention or fabrication on the part of the witness. As to that, the usual way in which such statements would have been admissible and admitted at trial would have been in re-examination of the witness by prosecuting counsel so as to rebut the suggestion by defence counsel of recent invention. As such, the statements ought, it is true, have been regarded as going only to credit and not as evidence of the facts they contained. See Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, especially at p 493, per Windeyer J. The same objection raised by the appellants on appeal would therefore apply to the use by the Commissioner of these statements in the course of finding the facts on which he based his decision.

There is, however, a degree of artificiality in applying the law in this way to a tribunal like the Commissioner, who is at one and the same time the tribunal of fact and the tribunal who is making findings on credibility. It means he was entitled to use the prior written statement to re-establish the credibility of a witness, whose evidence he thereupon accepted as reliable, as indeed he did in this case; but not to accept those prior statements as probative of the facts that would be proved and accepted by him as coming from a reliable witness of the facts. At this point, the distinction between proof of the facts and proof of the reliability of the witness who testifies to those facts is reduced to vanishing point. At least that is so if, as in this case, the prior consistent statements adds nothing new to the witness’s testimony that he gives orally in court. Still, if that is the law, we are bound to apply it. It is nevertheless, as Dixon CJ observed in Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479, a somewhat flimsy ground for a new trial application or, in this case, for an acquittal.

There are several reasons for concluding that this error (if that is what it was) in the present case is not fatal to the convictions. One is that it was (or must be assumed to be) defence counsel who tendered the prior consistent statements. It was done without, so far as the record discloses, any reservation or limitation that they went only to credit. For all that appears, they were simply tendered as part of the evidence adduced on behalf of the accused at trial. The witnesses through whom they were tendered affirmed that their previous written statements were true. That had the effect of incorporating them as part of their testimony before the court. Not only was their credit thereby re-established by their consistency, but their testimony now extended to adopting the contents of their earlier written statements as part of their evidence. In any event, it is impossible to regard the point now raised for the first time on this appeal as producing a substantial miscarriage of justice within the meaning of s 20A(6) of the Court of Appeal Ordinance 1978. We therefore conclude that this ground of appeal fails.

With this we turn to the matters of greater substance. As has been mentioned, the Commissioner arrived at his verdicts and judgments of guilty of murder against each of the four appellants on the basis primarily of s 22 of the Penal Code and alternatively perhaps in the case of the Miavana brothers, of s 21(c) of the Code. Section 21 makes a person criminally responsible for an offence if he "aids or abets another person in committing the offence". Aiding or abetting in this context means helping or assisting the primary offender or participant William Amalo to commit the offence, in this case the murder of Brian Majaposo. It is settled by the decision of the High Court of Australia in R v Barlow (1997) 188 CLR 1 that, in order to render such a "secondary" offender liable under the corresponding provisions of s 7 of the Queensland Criminal Code, that person must be proved to have given aid or assistance knowing the offence was being or about to be committed by the primary offender. This means that he must be shown to know the essential facts constituting the primary offence being assisted. See R v Jeffrey [2003] 2 Qd R 306, 310-311, 331, which (although reported later) was decided before the decision to the same effect in R v Lowrie & Ross [1999] QCA 305; [2000] 2 Qd R 529. In the present case, therefore, s 21(c) of the Penal Code required proof that each of the accused appellants realised when they assisted Amalo that he intended either to kill or to do grievous bodily harm.

Section 22 of the Penal Code provides that:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The provision in s 22 of the Code is identical with s 8 of the Queensland Criminal Code, from which s 22 was copied into the Penal Code of Solomon Islands. Section 8 (or 22) was also considered by the High Court of Australia in R v Barlow (1997) 188 CLR 1, from the reasoning in which it is possible to conclude that the principal questions for consideration here are: (1) whether each of Paisi and Joseph formed with Amalo a common intention of killing someone or causing him grievous bodily harm; and (2) whether the killing of Majaposo was a probable consequence of carrying out that common intention or purpose.

The second of these questions is to be determined objectively. See what was said about this in Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, at 442-443, by Gibbs J with the concurrence of Menzies J (at 433-434), and of Mason J (at 445). See also per Jacobs at 454. The first question, being one of intention, is to be determined subjectively according to what is found to have been the common intention in fact of the participants. What is to be proved was described in McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108, 114, as "an understanding or arrangement amounting to an agreement ... that they will commit a crime", which "need not be express and may be inferred from all the circumstances" (ibid).

It seems to us that there may be a question whether in terms of s 21(c) of the Code either Paisi or Joseph did any identifiable act to assist Amalo in the killing of Majaposo other perhaps than helping to bring and accompanying him to the village knowing his evident predilection for shooting people. But there can be no doubt that, as the Commissioner found, those two formed in conjunction with Amalo the common intention of killing someone or doing him grievous bodily harm. Majaposo just happened to be the unlucky target of this intention. To be sure, this is largely a matter of inference; but the inference of common intention or purpose is compelling. In the first place, it was to kill or do grievous bodily harm to Lukeson Kube. When he proved not to be available, they turned on Paul Pope. Although by his resistance he avoided the bullet aimed at his leg and succeeded in escaping them, the incident leaves no reasonable doubt that the common intention was, at the very least, to cause grievous bodily harm. Paisi and Joseph were eye-witnesses of Amalo’s attempt to shoot him. Far from dissociating themselves from it, they set out to subdue Pope and to recapture him when Amalo went to reload his rifle and then return to the scene.

Was the murder of Majaposo a probable consequence within s 22 of the common intention to prosecute a joint unlawful purpose? The Commissioner found as a matter of inference that the common intention was to assault and injure Lukeson "or otherwise cause him some kind of serious mischief"; or, at the very least, "to intimidate the villagers of Mbarabarakakasa". He was correct in concluding that such a purpose was unlawful. Going armed in public so as to cause terror is a misdemeanor under s 79 of the Penal Code. See also s 83(b) of the Code. In this, the potential problem for the prosecution is that it is possible to conceive of violence being threatened without its being a probable consequence that someone is murdered. However, just as the subjective understanding discussed in McAuliffe may be inferred from the circumstances, so it is capable of evolving and escalating or expanding in the course of carrying it out. Here Amalo, Paisi and Joseph set out with the intention of killing or injuring Lukeson using the rifle. When that intention was thwarted or frustrated by his absence, they extended their common intention first to Pope and then to Majaposo. Murdering someone, whether Lukeson, Pope or Majaposo, was well within the scope of their contemplation in carrying out the joint enterprise. Paisi and Joseph were rightly convicted of murdering Majaposo. Their appeals should be dismissed.

So far we have not discussed the case against the other two appellants. The prosecution of David Honitele and Roboe Ligabutu proceeded on a slightly different basis. They were among the five men who arrived in the boat at the village with William Amalo on 5 October 2001, but they remained in the boat after arriving there. They were found to be in a position to see what happened ashore, although that is disputed. After Amalo ran out of ammunition, he returned to the boat and said something to the two occupants. The Commissioner could not determine what was said; but one of the two passed a basket to the other, who handed it on to Amalo. He took some ammunition out of it and went back to where Paisi and Joseph had been holding Pope. It was after he returned to the scene that Amalo shot Majaposo. Knowingly, providing Amalo with the ammunition he used to reload the rifle and shoot his victim appears to be a clear case under s 21(c) of aiding and abetting that killing. Yet the Commissioner did not consider that the evidence showed that any of the appellants had aided and abetted the murder of Majaposo. Instead, he seems to have found that Ligabutu and Honitele were parties to the joint enterprise with the other two to kill or injure Lukeson, Pope, or Majaposo. That conclusion can be justified only on the footing that in seeing the shot fired at Pope and in handing over the ammunition, Ligabutu and Honitele became aware that Amalo intended to kill someone, and so became participants in the murder under s 22 of the Code.

This seems to us by itself to be a somewhat slender foundation for a verdict of murder against these two particular appellants. It involves imputing to them a common intention that, so far as those two were concerned, was formed only when the shot was fired at Pope, which it is assumed they witnessed, after the others went ashore. Without that inference, simply firing shots (which they heard) would not necessarily imply that the shots were fired at someone, as distinct from being discharged in the air. We accept generally the strictures advanced by Ms Swift of counsel in her criticism of this part of the Commissioner’s findings, and we do not consider that the evidence that was accepted by him was sufficient to justify beyond reasonable doubt a finding of murder against these two appellants. There was other evidence at the trial from a witness Peter Piri (PW1) that would have amply justified such a verdict. But the Commissioner did not accept that evidence or refer to it in his reasons for judgment.

It does not follow that Ligabutu and Honitele are free of all criminal responsibility for the killing. They were clearly parties to the common intention of causing harm to the villagers, if only to the extent of intimidating them by firing random shots at or about a place where there were known to be defenceless individuals present. In these circumstances we consider that verdicts of manslaughter should on the evidence be substituted under the Penal Code against Ligabutu and Honitele. For their participation in the enterprise that resulted in the death of Brian Majaposo they should be sentenced to imprisonment for 8 years.

On behalf of Paisi Miavana and Joseph Miavana it was submitted that the Commissioner was required, but had failed, to consider an alternative verdict of manslaughter in the case of each of them. Such a submission was advanced at the trial but rejected by the Commissioner. We doubt whether the Australian decisions on the need to consider manslaughter are applicable where, as here, the same person performs the functions both of finding the facts as well as applying the law. But in any event, there was compelling evidence here to justify the verdict of murder against each of Paisi and Joseph, and consequently no occasion to consider an alternative of manslaughter against them.

The Court makes the following orders:

(1) Dismiss the appeals of Paisi Miavana and Joseph Miavana against their convictions of murder.

(2) Allow the appeals of Rayboe Ligabutu and David Hicks Honitele against their convictions of murder, and in each case substitute verdicts against them of manslaughter. Reduce the sentences imposed on each of them from imprisonment for life to imprisonment for 8 years.

Lord Slynn of Hadley (President)
B. H. McPherson JA
Morris JA