Kejoa v Regina [2006] SBCA 6; CA-CRAC 028 & 031 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 Nos. 28 & 31 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:	JOSES KEJOA AND OWEN ISA -V- REGINA
ADVOCATES: Appellants: Respondent:	H Barclay (for Kejoa) & L Steven (for Isa) M Hobart, P Bannister
KEY WORDS:	Where each appellant was convicted of murder – whether the defence of compulsion was available on the evidence – whether records of interview of the appellants were voluntarily given and correctly allowed into evidence.
EX TEMPORE/RESERVED: ALLOWED/DISMISSED:	Reserved. Dismissed.
PAGES:	1-10

One ground common to each appeal against conviction for murder is that the trial Judge erred in holding that the defence of compulsion was not available on the evidence. It is convenient to deal with that contention first.

'A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.'

For present purposes it can be said there are at least three elements to that defence. Firstly, there must be at least two offenders with the relevant threat coming from the other offender. Here Ronnie Cawa was jointly charged with each appellant and convicted for each offence if murder. Therefore for purposes of the defence any relevant threat had to come from him.

Secondly, the threat from the other offender had to be a 'threat...... instantly to kill....or do....grievous bodily harm if he refuses.' That is there had to be a threat to kill immediately the party relying on the defence if that party refused to do the act constituting the charged offence. The fact that only a threat of 'instant' death will suffice is emphasised by the provision that the threat of future injury will not be enough to found the defence.

Thirdly, the 'act is done', that is the charged offence is committed, 'only because' the offender was 'compelled' by threat of instant death or grievous bodily harm to do so. The words 'only because' are significant. The presence of some other motive to commit the crime may well deprive the offender of the defence. Those words of the statute narrow the scope of operation of the defence considerably. If the prosecution established that the crime was committed for some other reason, despite the presence of a threat satisfying the section, the defence would be negatived. It is also clear that something more than a fear in the mind of the accused generated by some knowledge of the other offender’s disposition is required. That is made clear by the use of the words 'instantly to kill him or do him grievous bodily harm' and the words 'during the whole of the time' the act constituting the offence is done. The whole tenor of this section is that there must be a specific threat to kill or do grievous bodily harm which the co-offender is in a position to carry out immediately; anything less would not provide a foundation for the defence.

It is ultimately for the prosecution to negative the defence based on S.16, but there is a prior evidentiary onus on the accused. Details of the threat and the capacity to carry it into immediate effect are peculiarly within the knowledge of the accused and in consequence an accused must by evidence demonstrate that the issue is a fit and proper one for consideration by the tribunal of fact. The initial evidentiary burden is on the accused, and all that prosecution need do is negative what is prima facie established by the accused.

Much of the debate in this case was concerned with the significance of the term 'compelled' in s.16. We are here concerned with a Penal Code and clearly where the language of this Code is inconsistent with the common law of the United Kingdom and elsewhere the former must prevail. But that does not mean that cases on the common law of the United Kingdom are of no assistance to a Judge considering the application of s.16 to a particular set of facts. The word 'compelled' is not defined in the Code and regard could be had to authorities in other jurisdictions in determining what was encompassed by the use of the term in this context. Such other authorities would not be binding and could not be resorted to as a matter of law to confine the operation of s.16, but they could be helpful in determining what evidentiary matters were relevant in determining whether there was such compulsion in the legal sense.

Of significance for present purposes is the recent decision of the House of Lords in R –v- Hasan (2005) UKHL 22. There it was held that, where an accused person had voluntarily joined an organization that committed violent offences or was generally involved in criminal activity and participated in that activity, he could not avail himself of the defence of duress in relation to an offence committed in the course of the activities of that association, though obliged to obey directives of the association under pain of death.

Given the terms of s.16 it could not be held here that such defence was not open as a matter of law in those circumstances. Rather the joining of such an association, and continuing to follow its practices, could be material facts, when determining whether or not there was compulsion in the relevant sense. Given the use of the words 'only because' in the section, the fact that the accused had voluntarily joined such an organization would be a very material consideration. The prosecution could negative the operation of the defence on the facts by establishing that the act constituting the offence was done because of membership of the association and not only because of the general threat that failure to obey rules could result in death. Whether or not there was compulsion in the relevant sense would be a question of fact to be determined by the tribunal of fact and the membership of the association would be a very material consideration.

Against that background it is necessary to go to the facts of these two cases. Isa was jointly charged with Cawa with the murder of Brother Hill on 24 April 2003. Kejoa was jointly charged with Cawa with the murder of Br Paratabatu on 25 April 2003. Cawa was commander (referred to in evidence as a boss commander) of the Guadalcanal Liberation Front (GLF).

Subject to the admissibility of records of interview and the issue of judicial notice, the following is the evidence relevant to the defence of compulsion.

Isa joined the GLF in March 2002, meaning he was a member for about 12 months when Hill was murdered. The trial Judge described the GLF as 'an unlawful organization which conducted criminal activities throughout the Guadalcanal Province'. He went to say, 'I take judicial notice of its criminal activities and the atrocities it committed on innocent members of the community'. He also said its activities included 'ruthless execution..... committed on anyone they consider an enemy.'

In his first record of interview Isa, in answer to the question why did he join the GLF, said: 'Because I’m, because in me I want to fight for this island. So I, it is my main aim. So I want to joined him because he is fighting for right for this island. So I joined him.' When asked whether anyone threatened him to join the GLF he replied: 'Not, it is only in my heart. Government is only, my boys from home came and threatened me to joined the government. And then I said no, I do not want to joined the Government. So I escaped and joined the GLF.'

He gave similar answers in his second record of interview. When asked did Keke force or threaten him to join he said: 'No, yes I just gave myself to GLF'. He did so because he wanted 'to fight for my island'. In the witness box under cross-examination he said he joined in GLF operations as a 'soldier'. He conceded he was not forced to go on operations.

What then was the evidence on which Isa relied to establish a defence of compulsion? On about 21st April 2003 six Melanesian brothers travelled to the Weather Coast to look for another brother believed killed by the GLF. After leaving their boat the 6 walked to Ghorambau village where they were confronted by Cawa and other members of the GLF. In his first record of interview Isa said: '....We told them to surrender but they didn’t surrender... . They don’t want to follow the order. ... Then we shoot'. Two were shot dead and a third was wounded. With respect to the wounded man, Hill, Isa said: 'And he fell down and then we beat him and then he died'. He admitted to beating him. That was essentially repeated in the later record of interview. There is nothing in either record of interview which would found a defence of compulsion.

Isa gave evidence at his trial and a somewhat different picture was painted. Whereas in the records of interview he said he was present at the shooting and was able to give an account of who fired the shots, in the witness’s box he said he was in the village and only heard the gun fire. He and others ran to where the shots had been fired and saw three people lying on the ground. Other members of the GLF were there, about 30. His evidence went on:

'When we arrived and I saw the three men who were lying on the ground and I feel... . I felt fear. I was in fear... . Because I saw these three already lying on the ground, blood was flowing, so that is why I was afraid. Ronnie told me to go and kick another Tasiu... . He told me that before I went and kicked the Tasiu he told that these men were not obeying orders... . I went and kicked the man... . I just kicked him once... . I punched him on the head... . [He did that] because by the order... . Ronnie’s order... . Because I feared Ronnie... .Because at the time Ronnie’s appearance was frightening and also his actions – actions. Appearance and actions... . Yes, he was holding a gun... . I think if I don’t follow orders might be they will kill me. I’m not sure'.

That was the extent of his evidence in chief as to a threat. Under-cross-examination he was asked more specifically what Ronnie Cawa put to him. His relevant answers were:

'What Ronnie told me at that time was to go and beat up that man... . Yes, because Ronnie told me to go and beat so I go and beat that man... . That time all the GLF members were there... . Because he first stood and told me, 'you go and beat that man'. No any other threat to did to me'.

It was in the light of that evidence that the trial judge had to consider the defence of compulsion. The trial judge began his consideration by noting that Isa was 'an active participant in the beating that led to the death' but claimed he 'participated because he was ordered to do so by Cawa'. After setting out s.16 and correctly noting that the prosecution had to negative the defence he went on:

'The evidence of compulsion comes principally from the accused. In the course of examination in chief the accused in his sworn evidence outlined the circumstances that surround the day in question. The evidence involved where he was at the time, who was present at the scene of the incident and his participation in the beating of Brother [Hill]. He said he kicked and punched him on the head and leg. He kicked and punched the brother because he was ordered by [Cawa]. [Cawa] was armed with a high powered weapon when he ordered the accused to kick the victim, and at the time he was surrounded by at least 30 or 50 members of the GLF who were armed. These factors would clearly give rise to a threat of being killed or seriously harmed if did not follow order'.

In so putting the defence case the trial judge was taking the evidence of Isa at it’s highest.

It is now necessary to turn to the other appellant Kejoa. He also had been a Member of the GLF for about 12 months before the incident. He said he joined because the leader Harold Keke 'was fighting for the life of my island.' In oral evidence he indicated the whole of his village supported the GLF even before he formally joined. In his first record of interview he said he underwent training with guns but in evidence in chief he claimed he was always a civilian member.

He dealt with the incident in question at some length in his first record of interview. He readily admitted to shooting Brother Paratabatu. He spoke of having his own gun but did not say when or how he got it. He described the shooting of the three brothers; he shot first. He named the others who fired. When asked what was he told which led to him shooting, he replied! 'He [Cawa] gave me an order that I shot him'. He could not remember any other words Cawa used.

He did not know about the killing of the other three brothers the day before as he had been at the village. He heard about that later. He gave a broadly similar version in his second record of interview. On the day in question 'he saw three Tasius'. He went on.. . 'And then by order of Ronnie I shot this Tasiu'. He repeated: 'Ronnie gave order to shoot this one and so I shoot'. There were 'quite many' other GLF members present at the time. On a number of occasions he repeated that Ronnie identified the one he was to shoot and on the order he shot. He described the gun he used as an SR88. He also again spoke of the shooting of the other two brothers but claimed he was some distance away then. After saying that Cawa chose him to do the shooting, he went on:

'Because, I do not know what they are going to do with me. I heard the order, I shoot... . I think they will say something to me or do anything to me... . I think they say that I am a spy or helping them. I do not know what they might do'.

In evidence in chief he painted a different picture. On the morning in question he said he went to the water and saw the three brothers there. His evidence went on: 'When I first arrived, at the same time Ronnie ordered me to kill him'. There were about 20 GLF members there with guns, but he did not have one. His evidence was: 'As soon as he saw me he ordered me and told – he gave me the gun, chambered the gun, and he ordered me to shoot Brother Ini,' When asked why did he shoot he said: 'Because from an order from Ronnie he gave me the order then I shot him'. When asked what might have happened if he did not obey, he replied: 'They will kill me immediately as well... . If I run away they will shoot me'. He could not expand on why he held those beliefs

Under cross-examination he maintained he was always a civilian member and was 'only to train how to run away not how to go and fight or kill anybody'. When asked about the shooting, he answered: 'When they ordered me another boy, Kali, told me or instructed me to hold the gun and he told me to point at a certain place and I pulled the trigger'. A little earlier he said Kali gave him the gun. This was the first time there was mention of a man name Kali. He also said: 'But in my heart I had no intention to kill him. Because of the order I did'. He again said he was frightened and did not want to die.

'In his evidence under oath the accused did not tell the court of any direct threat, or that he would be killed, or have grievous bodily harm inflicted upon him.

It seems to me there is no background as to any reason why the accused should have the fear. There has been no evidence of anyone in the GLF being harassed or killed as a result of not following orders from [Cawa] and he did not indicate if he had seen this occur. The accused is raising the same issue as [Isa] in that whilst there is no issue that he shot and killed Brother Ini Parabatu. The reason he killed the brother is because he was ordered to do so by [Cawa]. Clearly his intention to kill Brother Ini Parabatu is in no doubt, however he claimed compulsion as a complete defence as he was acting under a direction and fear of his life'.

Having referred to the evidence relied on by each appellant to support the defence of compulsion, the trial judge went on to consider the relevant law. He referred to the common law definition of duress discussed in R –v- Martin (2000) 2 Crim App. R.42, DPP for Northern Ireland –v- Lynch (1975) 61 Crim App. R. 6, R –v- Graham (1982) 74 Crim. App R.235, and R –v- Howe (1987) 85 Crim. App. R.32. Against that background he considered the relevance of the fact that the accused had voluntarily joined a criminal organization from which the duress emanated; in that regard he referred to R –v- Shepherd (1988) 86. Crim. App. R 47, R –v- Sharp (1987) 3 W.L.R. 1, and R –v- Hasan. His reasoning resulting in his finding that the prosecution had negatived beyond reasonable doubt the defence of compulsion was as follows:-

'Both accused .... as clear from the evidence are members of the ...GLF.... . The organization is an unlawful organization which conducted criminal activities throughout the Guadalcanal Province. I take judicial notice of its criminal activities and the atrocities it committed on innocent members of the community. Both accused have been associated with the organization and have taken part in the various activity. They should know and must have known the sort of activities the organization is involved in, and the ruthless execution it committed on anyone they consider an enemy. The ....accused are clearly aware of the violent nature of the organization and did not leave but continue to associate with the membership and choose to remain and continue to be part of the illegal activity. They therefore cannot claim duress as a defence. I adopt the case of R –v- Hasan ..... where the Court restated the principles of law, that where an accused person has voluntarily joined an organization that commit violent offence or involved in criminal activity and participated in such activity he cannot avail himself of the defence of duress.'

Counsel for each appellant correctly submitted that principles of common law could not over-rule or modify the clear and express words of the Penal Code. To the extent that the trial judge concluded that the principle derived from Hasan negated as a matter of law the availability of the defence of compulsion he erred.

It should also be noted that the decisions of the House of Lords in Hasan, and the relevance of voluntarily joining a criminal organization, were not the subject of submission from either side during the course of final addresses. In those circumstances the trial judge should have called for further submissions on that point before relying on it in order to reach his conclusion.

But though the common law cannot over-ride the Code, decisions of the common law on duress are relevant when considering the factors relevant to a defence under s.16 and its application. Indeed s.16 can be traced back to drafting found in a number of Criminal Codes prepared in the late nineteenth century and which have been considered in a number of decisions on the common law. The requirement that the threat be to 'instantly' kill or do grievous bodily harm has its origin in those Codes. Further the criminal jurisprudence under-pinning the defence of duress or compulsion is common to the Solomon Islands and all common law jurisdictions. Against that background the English cases referred to by the trial judge, particularly the recent House of Lords decision in Hasan, are of some assistance in resolving these cases.

Lord Bingham, who delivered the principal judgment, made the following points in para [21]:

(1) 'adults of sound mind are ordinarily to be held responsible for crimes which they commit.'

(2) For reasons he stated in paras [18] to [20] and which need not be repeated, the law should 'confine the defence of duress within narrowly defined limits.'

(3) 'To found a plea of duress the threat relied on must be to cause death or serious injury.'

(6) 'The defence of duress is available only when the criminal conduct it is sought to excuse has been directly caused by the threats which are relied upon.'

(7) Duress will excuse criminal conduct 'only if.... there was no evasive action he could reasonably have been expected to take.'

Each of these considerations is applicable when one is seeking to rely on s.16 of the Penal Code. None of those considerations is inconsistent with the wording of s.16. Points (6) and (7) are made relevant by the use of the expression 'only because' in s.16. As is also pointed out by Lord Bingham, because of the extraordinary nature of the defence, those conditions should not be relaxed; if anything they should be applied strictly.

The House of Lords did hold that as a matter of law a 'defendant may not rely on duress to which he has voluntarily laid himself open.' Given the wording of s.16 it cannot be said that the defence could never succeed in the Solomon Islands where the accused had voluntarily laid himself open to the duress. But in all cases when an accused in the Solomon Islands had voluntarily laid himself open to the duress that would be a very material consideration in determining whether he committed the crime 'only because' he was 'compelled' to do so by a threat to 'instantly kill him or do him grievous bodily harm.' Often in such a case the crime would be committed not 'only because' of an established threat of the relevant kind but also because of the membership of the organization. Further, if one joined an organization knowing its members were subjected to threats of that kind it would be difficult for an accused to establish as a fact that he was 'compelled' to commit the crime.

Against that background it is necessary to return to the findings made by the trial judge; the following appears to be the position:

(1) Neither appellant gave evidence of a direct threat from Cawa that he would be killed or done grievous bodily harm if he did not carry out the specific order to kill a brother.

(2) There was no evidence that either appellant had knowledge of anyone in the GLF being harmed or killed as a result of not following an order from Cawa.

(3) Each appellant obeyed an order from a commander of the GLF, an organization he had voluntarily joined.

(4) Each accused knew or ought to have known of the criminal activities of the GLF and indeed had taken part in its activities.

(5) Though each accused was aware of the violent nature of the GLF each continued membership and chose not to leave but to continue to be part of the illegal activity.

Those are clearly findings made by the trial judge when expressly dealing with the defence of compulsion.

But there are the further factual considerations relevant to the defence which, though not the subject of an express finding at that stage, were established by the evidence. Though there was no express threat made by Cawa, it can be accepted that each appellant had a real fear of reprisal if the order was not obeyed. That fear was based essentially on a perception within the organization. It was based on general knowledge of the ruthless nature of the association voluntarily joined, rather than any specific or direct threat. For that reason a finding that each appellant had a real fear of reprisal would not, in the circumstances, gives rise to the defence.

Finally, neither appellant gave evidence he was compelled to commit the crime in question because of a threat or fear of 'instant' death. Isa’s evidence was: 'I think if I do not follow order might be they will kill me. I’m not sure.' Kejoa said in evidence: 'I think they say I am a spy or helping them. I do not know what they might do.' But when specifically asked in evidence he did say: 'They will kill me immediately as well' though he could not say why he held that belief.

When one considers the evidence and the findings of fact made by the trial judge it is clear that the facts in each case were not sufficient to give rise to the defence of compulsion under s.16 of the Code. Strictly applying that provision, the evidence in each case did not support the conclusion that each murder was committed 'only because' the appellant in each case was 'compelled' to do the act because of some specific and direct threat from Cawa to kill or do grievous bodily harm to the appellant if the murder as ordered was not carried out.

Though the trial judge erred in concluding that the principle in Hasan as a matter of law precluded the appellants from relying on s.16 of the Penal Code, as the findings and evidence made clear that neither appellant could have avoided conviction by relying on s.16 there has been no substantial miscarriage of justice. This is an appropriate case in which to apply the proviso found in p.23(1) of the Court of Appeal Act 1982 and dismiss each appeal.

It is now necessary to deal with other grounds of appeal raised by each appellant. Four matters have to be considered:-

In the passage from the reasons quoted above in relation to the availability of the defence of compulsion the trial judge took judicial notice of the activities of the GLF as stated therein. Counsel for each appellant submitted he was not entitled to do so.

It is not disputed that judicial notice may be taken of notorious facts, facts which are well known by all ordinary persons. In the present context that must mean all ordinary residents of Guadalcanal. It is notorious that for a number of years the lives of all residents of Guadalcanal were affected in one way or another by the activities of the GLF. Further, some seven months before judgment in this matter the High Court had delivered judgment in R –v- Keke, Cawa and Lela in which leaders of the G.L.F were convicted of murder. There had also been other cases determined in the High Court involving members of and activities of GLF. There were findings in all of those cases about the activities of the GLF which supported the impugned findings by the trial judge in this case based on judicial notice.

The broad, but limited, findings made by trial judge were within the proper scope in all the circumstances of judicial notice.

The admissibility of the records of interview and the sufficiency of reasons relating thereto can be dealt with together. The first matter that must be addressed is an apparent error in the reasons.

The trial judge quoted the relevant passage from the judgment of Dixon J, in R v Mc Dermott (1948) 76 C.L.R. 501 at 511 and stated that 'a court may admit a caution statement if it is satisfied that the prosecution has proven beyond reasonable doubt that the statement was made voluntarily'. Then after reviewing submissions he concluded that each record of interview was voluntarily made and its admission would not be unfair to the accused. On those occasions the trial judge was directing his mind to the correct principles.

But in between making those statements, and when he began to address the submissions, his written reasons state: 'The discretion to be exercised by the court in considering whether to admit evidence that is not made voluntary must be carefully considered.' That, of course, is wrong. There is no discretion to admit a confession not made voluntarily. It is not clear whether the trial judge made a slip of the tongue in inserting the word 'not', or whether it was an error in transcription; in either case the error was obviously not picked up by the judge. What is important is that the reasoning reflects the true approach and not that derived from the offending sentence. That sentence can, and should, be ignored and the validity of the conclusion reached evaluated by reference to the balance of the judgment.

Isa provided two records of interview. The first at Kolina village on 25 September 2003, and the second at Honiara later that day. Kejoa also gave two interviews. One at Kolina Village on 25 September 2003, and the second at Honiara later that day.

In considering the issue of voluntariness it is essential that the court have regard to all the circumstances surrounding the making of the admission.

The appellant Isa relied on the fact there was no warning given at Kolina, that he did not fully understand the warning given at Honiara, that he was not given a proper chance to get a lawyer, and that he was induced to speak by statements made by Senior Police to GLF members to come forward and tell their story.

There are two important matters which make the issue now under consideration more difficult to resolve than would be the normal case. Firstly, the interviews were conducted in pijin and shades of meaning can vary as between the languages. Secondly, the interviews were conducted against the background of a very delicate social and cultural situation which had developed on the Weather Coast of Guadalcanal. The circumstances were vastly different to those which would ordinarily prevail when a crime was being investigated.

The trial judge in his reasons dealing with Isa said it was 'clear that the accused volunteered the statement' and the real issue was whether 'he exercised it with a free choice to speak or remain silent.' That was the correct approach. The police evidence was that a caution was given at both Kolina and Honiara. There was also evidence that at Honiara Isa agreed that the interview should go ahead without a lawyer.

The trial judge not only had this advantage of seeing this witnesses but he also had the advantage of listening to the tapes and following the questions and answers in pijin. He concluded that the series of meetings were initiated by the leadership of the GLF who wanted to tell their side of the story. When it came to interviewing individuals, cautions were administered at the appropriate time. The trial judge accepted the police evidence that steps were taken to ensure Isa understood the process and that all proper procedures were followed. Given the evidence it cannot be said that conclusion was not open to him.

The matters raised by Kejoa were substantially the same as those raised by Isa. In addition he raised that fact he had no interpreter during the first interview and during the second he appeared confused about this caution and at one point asked for a lawyer. A point was also made that Kejoa was given a lollipop prior to the Kolina interview.

Again the trial judge had the advantage of seeing the witnesses and listening to the tapes of the interviewers. The second was in pijin and that would have been followed by the trial judge. He again preferred the evidence of the police witnesses.

There is nothing in the contention that the giving of a lollipop amounted to an inducement. The response of Kejoa to the cautions and his reference to wanting a lawyer were matters to be assessed by the trial judge after hearing the witnesses and listening to the tapes. It has not been demonstrated that he erred in reaching the conclusion that he did.

The attack on the sufficiency of reasons is based on the fact he did not deal with each point taken by each appellant separately, but adopted a global approach in providing reasons for the conclusions he reached. There is always a danger in adopting that approach in that it can always be said something has been over-looked. But reading the reasons here in the light of the evidence and the submissions it cannot be said that the reasons were so deficient that the ruling should be set aside.

It follows that the appeals against the admissions of the records of interviewer fail.

After an assessment of all the evidence in the light of the foregoing reasons it cannot be said that the verdicts were unsafe and unsatisfactory.

Court of Appeal of Solomon Islands

Kejoa v Regina [2006] SBCA 6; CA-CRAC 028 & 031 of 2005 (31 May 2006)