Saeni v Regina [2006] SBCA 23; CA-CRAC 022 of 2005 (31 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. 22 of 2005
DATE OF HEARING:	Monday 22nd May 2006
DATE OF JUDGMENT:	Wednesday 31st May 2006
THE COURT:	Lord Slynn of Hadley P Williams JA Ward JA
PARTIES:	PATTESON SAENI -V- REGINA
ADVOCATES: Appellants: Respondent:	G Brown
KEY WORDS:	Where the appellant was convicted of assault – whether the judge erred in the way he dealt with evidence of identification and the reliability of witnesses particularly in connection with identification.
EX TEMPORE/RESERVED: ALLOWED/DISMISSED:	Appeal dismissed
PAGES:	1-6

On 8 July 2005 the appellant was convicted of assault on Colin Hagi Jnr causing grievous bodily harm contrary to section 226 of the Penal Code and of murdering Samani Ramo contrary to section 200 of the Penal Code.

With the leave of this Court he appeals against both convictions. It is said that the decision was unsafe and unsatisfactory and that in the case of the murder conviction the learned judged (a) misdirected himself and (b) erred by disregarding unreliable aspects of the evidence of some of the witnesses. The core of the appeal, however, is that the judge erred in the way he dealt with the evidence of identification and the reliability of witnesses particularly in connection with identification.

The affair began following an arson at Placemakers Building in Honiara when a group of suspects and police were brought from Malaita to Guadalcanal. Some came by plane to Henderson airport. The appellant was seen there and there is a record of a conversation between the appellant and Ako in the car on the way to Rove Prison from Henderson airport where the appellant had met the suspects arriving from Auki. It is alleged by Ako that when Saeni was told that a likely suspect was Ramo, Saeni said "tonight we will panel beat him".

As to the assault which took place at the Central Police Station where a number of men were involved, it is said that four witnesses did not implicate the appellant and the others gave evidence which was so inconsistent that the court should have not been satisfied that the appellant was involved . Moreover the court did not rely on the evidence of Forau and the evidence of Collin Hagi Jnr the victim of the assault was so uncertain and vague and based on what he had been told rather than seen that it should not be relied on. Collin Hagi Jnr said at different times –

(In chief) about the incident at the Police Station "I could not recognise them [the men who punched him] It must be Saeni and them that hit me".

(In cross-examination by counsel for Iro’ota) he was asked "and in fact you did not see Patteson Saeni". "A. Yes".

He agreed he had heard people mention their names and when it was put to him that "he did not really see them [including Saeni]" he said "yes. I just heard it because they are talking about it".

Counsel for the appellant criticised the judge’s conclusion at paragraph 40 –

"Taking into account the recollection of the victim and more significantly the evidence of Taki, the court finds that Mr Saeni was a party to this assault on Collin Hagi Jnr".

Taki, a police officer in charge of the police station in the evening in question said that the appellant arrived during the course of the beating of Mr Hagi and he saw the appellant involved. To the contrary effect was the evidence of another witness Tofasi who said that the appellant arrived after the beating had already taken place.

Counsel submits that there was no reason why Tofasi’s evidence should be rejected and Taki’s accepted when both had previously made inconsistent statements. There simply was not enough evidence to justify finding the appellant guilty.

The judge found that the assault which was serious and it seems prolonged was in a small, confined but well lit area:

"The witnesses had the opportunity to observe the accused over a period of time. They were not treated to a mere fleeting glance".

As to the assault it is right to recall the judge’s evaluation of the witnesses in regard to another accused Lusibaea who is said to have held the victim’s arm and ordered the others to assault him.

The judge was satisfied that Lusibaea had been sufficiently identified by Tofasi and Taki, both police officers, and by Hagi Jnr and Ako a Special Constable. He did not attach much if any weight to the evidence of Ako, Forau or Tongana. As to the victim despite some inconsistencies, the judge found that "he was clear about his evidence and resolute as to his identification."

The victim, as has been shown gave different versions of his evidence against Saeni but after seeing Saeni subsequently in the street Hagi said "but yesterday when I saw him I thought that was the man that hit me".

Taki had known Saeni for three and half years and he recognised Saeni as an assailant at the police station. The judge found that there had been inconsistencies in his evidence but that "the evidence of Taki was clear and convincing. His evidence was not seriously undermined by cross-examination".

Tosani in evidence said that Saeni was not amongst the assailants. The judge took that to mean that Tosani did not see Saeni there. He found "taking into account the recollection of the victim and more significantly the evidence of Taki" that "Mr Saeni was a party to the assault Collin Hagi Jnr".

There is no longer any question as to whether the assault resulted in grievous bodily harm. It was a savage attack. The victim was punched and kicked till he became unconscious.

As to the charge of murder there is no doubt that Ramo was killed on or near the Female Unit at the Central Police Station where he was taken from Rove Prison. He died from wounds from four gunshots "fired at him at close range by men just outside of the Female Unit building".

The judge again heard evidence from a number of witnesses who were at or around the main entrance to the prison and the adjacent fire house and the area leading to the prison at the armoury guard house. The appellant contends first that the judge relied principally on the evidence of Philip Qaloboe and Mathew Ponotufu– Rangi when it was unsafe to do so. The former made a mistake about the identity of the prison officer at the gate. He mistook Sebe for Ponotufu-Rangi. That in itself should have made the court seriously question the reliability of his other evidence.

Ponotofu-Rangi’s evidence was equally unreliable, it is contended by the appellant. He let in the group which came through the gate in the evening. He only identified the driver in the street later when a red land cruiser passed them. Taki said to him that "the leader was the one going in the truck to which Ponotufu-Rangi replied "that is the man that shot Ramo".

Counsel submitted that Taki’s evidence identifying the accused was also unreliable since it was inconsistent with a previous statement. Taki’s evidence was that the land cruiser was blue travelling at 30 kph and 20 metres away.

There was here, it is said by the appellant, a lurking doubt as to whether justice has been done. If the principle stated in M -v- The Queen (1974) 18 CLR 487 is followed the judge could not have been satisfied that there was no reasonable doubt as to the guilt of the appellant.

"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 on that evidence".

The appellant says secondly that the judge erred in putting together unreliable matters of evidence and concluding that, even if individually they were not sufficient, the totality was enough to justify conviction. The appellant says: –

"Each of the identifications were unreliable; occurred in circumstances that were less than ideal; were not without difficulties; had problems; whereby witnesses who had made mistakes that other identification; or were by witnesses whose evidence was flawed by previous inconsistent statement". Passages in the evidences are identified for each of these complaints (para 4 of Appellant’s written submissions).

The learned judge began his assessment of the evidence on the assault by saying –

"The Court is aware of the need to exercise caution in cases where identification is the issue and those mattes referred to by defence counsel, not only for this accused, have been considered. Some of those matters were set out in R -v- Turnbull[1]. To the extent that those consideration are relevant in this case they have been considered. That fact, the court hopes is, in any event, apparent from a thorough reading of this judgment."

He referred to the evidence Special Constable Manepuju who said that he had seen two vehicles enter the complex and he identified Saeni as being there, through the open window. The judge thought in view of the distance away from the witness and the time for observation that there were difficulties about this evidence. His evidence alone would not support a finding that Saeni or the other accused Iro’ota went into the prison. Piturara and Pelebo, other witnesses, the judge found did not add anything useful.

The judge attached more importance to the evidence of Philip Qaloboe and Ponotufu-Rangi. The former identified Saeni, whom he had known for three years, as having arrived at the prison and having gone in with a prison officer. Shortly after he heard the gunshots. The judge accepted that his evidence was inconsistent in particular with that of Manepuji. However, Qaloboe "gave his evidence in a manner more convincing than the other witnesses and he did have a better vantage point and longer observation period than the others". He made inconsistent statements about the vehicles that arrived at the prison; he had probably made a mistake between Sebe and Ponotufu-Rangi. But his evidence was "clear, not perfect, not embellished and confident. It was not undermined by cross-examination to the extent that it must be regarded as unreliable, I accept his evidence identifying Mr Saeni as arriving at the main prison complex and thereafter going into the prison itself".

The judge recited the evidence of Ponotufu-Rangi who witnessed the shooting. The judge found that he had the opportunity to observe the man involved at close quarters and over a period and he recognised Saeni as being the man who had shot Ramo.

The case against the appellant for the murder of Ramo must be considered in the light of the finding that he was an active participant in the assault on Hagi Jnr. In that regard the acceptance by the trial judge that a "parting remarks" was made is important. That was a reference to the evidence of Hagi Jnr that someone in the group attacking him said they were going to kill Ramo. He then said the person said: "We’re going to shoot this man and then we’ll come back and shoot you as well." During the assault on Hagi Jnr the appellant was seen to be armed; he had a 9mm pistol in his trouser belt. Ramo was in fact killed by bullets from such a gun.

The judge reminded himself of the well known Turnbull guidelines and found that this street identification has "less than ideal". The vehicle was some distance away and the period of observation was short. Moreover this identification may have been stimulated by what Taki said. Taki had seen Saeni in the assault at the police station and had seen Saeni with a gun tucked into his trouser belt.

The Judge would probably not have accepted Ponotufu-Rangi’s evidence standing alone but he held (as he was entitled to do) that "what the Court needs to do is consider the cumulative effect of all the various identifications that have been given in this case and make a determination based on the whole of the identification evidence and not just on one piece in isolation" (para 69).

"I am satisfied that this would not be the case in this trial. The identification by Qaloboe outlined and considered above is not an unreliable identification. The identification by Ponotufu-Rangi is less than completely reliable but, when supported by another identification that has no connection with, this can justify its acceptance as being capable of supporting a finding. Then, when it is accompanied, as it is, by evidence from the same witness as to the build and physical characteristics of the accused given earlier matching those of this accused, there is, in my view, a sufficient body of evidence such as to support a finding that Patteson Saeni went into the prison on this evening together with other men, went to the female unit and shot Samani Ramo four times resulting in his death shortly thereafter. A 9mm pistol was seen on Saeni earlier this same evening by the witness Taki, whose evidence I have already described. The victim was shot with a pistol, as described by the witnesses to the shooting. The intention to carry out some form of punishment on the remaining suspect had been expressed at the end of the assault on Hagi. It is my view that all of this evidence must be taken into account when assessing whether the prosecution has discharged the burden of proof." (paragraph 70).

An alternative version of the murder was raised at a later stage. The judge rejected it and there is no need for this court to deal with it.

There were obviously difficulties in this case, not made easier by the length of the trial. The judge was well aware of the need for caution and of the Turnbull guidelines. He directed himself in accordance with them. He analysed each witness’s evidence and rejected some of it as not adding anything to assist in the central questions. He acknowledged many of the problems relied on by the appellant in Ms Brown’s forceful and detailed submissions. His analysis of the issues and the evidence is made with great care and clarity. He saw the witnesses. Taking into account all the doubts and problems he still concluded that there was enough to make him sure of the identity of the assailant in the assault case and the murderer in the other case. Ms Brown accepts, rightly, that in principle it is open to a judge in some circumstances to look at all the evidence together, warts and all, and to read the probative with the doubtful or even unacceptable. She contends that here in doing so the Judge has come to a wrong, an unsafe, conclusion overall.

This court having considered all her contentions and the details of the judgment has concluded that on both counts the judge cannot be said to have erred so as to reach a conviction which was unsafe or unreasonable.

Court of Appeal of Solomon Islands

Saeni v Regina [2006] SBCA 23; CA-CRAC 022 of 2005 (31 May 2006)