Isa v Regina [2007] SBCA 10; CA-CRAC 18, 19, 20 of 2007 (16 October 2007)

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NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands (CRCs 301 of 2004 and 312 of 2004)
COURT FILE NUMBER:	Criminal Appeal Nos. 18, 19 & 20 of 2007
DATE OF HEARING:	4 October 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	G. Isa and Others (Appellants) -v- Regina (Respondent)
ADVOCATES:
Appellants:	P. Southey for Isa N. Manning for Bosage G. Squire for Kaptendou
Respondent:	M. McColm
KEY WORDS:
RESERVED/DISMISSED:	Bosage allowed Isa and Kaptendou dismissed
Pages:	1 - 22

These proceedings arise from incidents at Marasa Bay on the Weather Coast of Guadalcanal between 16 and 18 June 2003. 6 men (R Cawa, G Isa, A Bosage, O. Isa, M. Kaptendou and C. Pitakaka) were charged on joint information with 2 counts of murder (John Lovana and Adrian Bilo), 28 counts of wrongful confinement, 11 counts of Arson and 1 count of membership of an unlawful society, the Guadalcanal Liberation Front. The trial took from 18 September 2006 to 27 February 2007 and many witnesses were called. In the judgment given on 19 April 2007, R. Cawa, G. Isa, O. Isa and M. Kaptendou were found guilty of murder and sentenced to life imprisonment: Bosage was found not guilty of murder but guilty of manslaughter and sentenced to 4 years imprisonment. A Bosage, G. Isa, M. Kaptendou now appeal their convictions on these charges.

It is not necessary to get into the details of the other charges or their consequences since they are not covered by these appeal proceedings.

The Prosecution case was that the appellants, members of the Guadalcanal Liberation Front, were participants in a joint criminal enterprise to "capture and detain the villagers and to cause the deaths or grievous bodily harm to the villagers Lovana and Bilo and to set fire to the villages." The GLF heard that a supply of ammunition was to be provided at Marasa Bay by boat to the Joint Operation Group, a government organization of special constables involved in security operations on the Guadalcanal Weather Coast. On 15 June the boats arrived and a gun fight between GLF and their opponents the JOG followed. On Monday 16th June the GLF group armed with firearms, knives and sticks went to the coast. They then ordered more than 400 villagers from Marasa to go to the coast and escorted them there.

Lovana was taken from his village and then taken to the beach, his hands tied behind his back. He was placed in front of the villagers, punched kicked and beaten by GLF members. Bilo was put near Lovana and some members began to beat them. Money was forced into their mouths and pushed to the back of their mouths. These two men were apparently chosen because they had been seen by Owen Isa with the JOG the day before. Lovana escaped, was recaptured and taken to the beach where he was cut "diagonally and deeply across his back with a long bush knife". Both Lovana and Bilo were beaten with wood and rocks and eventually died. The houses of the villagers were burned on Kaptendou’s orders.

Mr. Commissioner Lewis considered what in law was required to establish a joint criminal enterprise. He found that

"This was a straight forward understanding or arrangement ...It was always the understanding that supporters of the JOG were to be killed dead and inflicted with grievous bodily harm." "The common objective on the Monday was always, I find to kill dead or inflict grievous bodily harm on any JOG supporter. That common objective crystallized when two such supporters

(Lovana and Bilo were identified." I found that it was the understanding of each accused (with the exception of Pitakaka ... and Bosage whose presence at the beating was very brief and who I found did not have the requisite knowledge to pursue the common objective, that the accused would kill dead or inflict grievous bodily harm on both Bilo and Lovana."

In his Dock statement Bosage said "I only hit John Lovana and then I left the beach before they took Adrian (Bilo) out of the crowd" He told the police that he expected that "Lovana would take a week to recover" and that "he did not hit Lovana with stones just with his fists and kicked his stomach".

The Commissioner did not accept the evidence of Mrs. Dakinibugodu that Bosage had beaten Lovana and Bilo with stones. Nor did he accept the evidence of Maganamate and Lele that Bosage had used stones or 2 feet long sticks.

"I am satisfied that while [Bosage] struck blows on Lovana he left the vicinity of where Lovana was standing before Bilo was brought from the crowd."

"I specifically find that at the time of his assault on Lovana that Bosage did not regard himself as being a part of any understanding or arrangement amounting to an agreement, express or implied to kill and/or to inflict grievous harm on Lovana. I find that he did not assault Bilo, nor did he intend that others should kill Lovana and/or Bilo nor encourage them by remaining and acting as security. In other words, I am not satisfied that he had the necessary knowledge."

"He is guilty of manslaughter pursuant to the Code section 199. The basis for so finding is that he omitted to discharge the statutory duty he was carrying at all material times to preserve the life or the health of Bilo and/or Lovana whose lives he was compelled to consider by any standard. The life or health of Lovana at least must have been at serious risk having regard to the activities of others in the group of GLF members who were beating Lovana as Bosage left the scene to ‘do security’.

It was agreed between Counsel for Bosage and the Crown that the Commissioner gave no indication that he was considering a conviction for manslaughter by culpable omission or under section 199 of the Criminal Procedure Code which provides that:

"Any person who by an unlawful act or omission causes the death of another person is guilty of the felony known as manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."

Mr. McColm accepts that the Commissioner could have considered manslaughter pursuant to section 199 had he given counsel the opportunity to deal with the matter. He submits that since he did not do so the court should quash the conviction on that basis but it should order a new trial. In all the circumstances, including the fact that sentence had already been served, the Director would enter a nolle prosequi.

Miss Manning does not accept this. She wants the conviction quashed with no order for a new trial even with a nolle prosequi attached. In her admirable written submissions she relies on her first four grounds of appeal which Mr. McColm says have not been made out.

The appellant says that here there was no duty of care for the purposes of section 199: (Grounds 1 and 2); moreover it cannot be said that he caused the death of Lovana and/or Bilo since he could not have prevented their deaths which were caused by the acts of others (Ground 3); (Ground 4) in any case he had left the scene before it was seen that Bilo was to be gravely assaulted.

We have been referred to a number of cases at common law which show that if a duty can arise which, if not complied with, leads to the death of a person that can lead to a charge of manslaughter. But "the duty neglected must be a legal duty, and not a mere moral obligation ... and the omission to perform the duty must be an immediate and direct cause of death". This duty has been seen to arise where someone is in the custody or under the protection of another person such as parent and child, husband and wife, employer and employee. See People v Beardsley 113 NW 1128(1907) (where the decision on the facts might in some jurisdictions be now different); Nicholls 1874 13Cox CC at 75 Rv Stone [1977] 354 and Jones v United States [1962] 308F2 D 307. In Jones it was said:

"There are at least four situations where the failure to act may constitute a breach of the legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid."

We do not cite further passages from these cases because they turn largely on their own facts. We have, of course, not heard full argument on the intendment of section 199 but we are far from satisfied that the duty arose or could arise in a situation like the present. It is a long way from the examples given of where the duty has been held to arise. Bosage was on security duty looking out for any approach by the JOG and the delivery of the ammunitions. He did not, it seems, bring villagers to the beach. He was one of a number of GLF members who it may be argued were subject to the same duty, if it exists in his case.

It is, moreover, difficult to see how he could have prevented the deaths – the commanders and leaders on this aspect might be in a different position – and in Bosage’s case it does not seem that what he did actually caused the death of either person.

Taking these factors into account and recalling that he has already served the sentence for manslaughter imposed by Commissioner Lewis we do not think it appropriate to send this case back for retrial even with a nolle prosequi to follow. The conviction is therefore quashed without further order.

Arising out of the events at Marasa Bay to which reference has been made in the case of Bosage, Gedilly Isa on 19 April 2007 was convicted of 2 counts of murder (John Lovana and Adrian Bilo) 26 cases of wrongful confinement and 11 cases of arson.

His first notice of appeal filed on 16 July 2007 contended that the verdicts were unreasonable and not supported having regard to the evidence but an amended notice filed on 17 August added the ground that Commissioner Lewis had reversed the onus of proof when he came to consider the appellant’s sworn evidence at the trial. Mr. Southey has supported all these grounds at the hearing of the appeal.

In evidence Gedilly Isa said that on Sunday the 6th he had gone with Cawa and others to look for the JOG boat. After his return he had brought one of the villagers down to the breach.

He had never touched or spoken with Bilo but he accepted that he had punched and kicked Lovana three or four times. He then went off to do security duties. He explained that when he told the police that he had helped to kill two guys he meant that he had helped to beat them and when he said that it was his intention to kill them dead, he explained "why I said that was because I saw their dead bodies. So the answers I gave were general answers". He had no orders to kill them dead. In explaining in his evidence what he had meant by "killing dead" he said "Okay, it’s like this, you know when we find out that he was a member of the Joint Force so when we killed him our intention is to kill him dead". "I helped to kill them but I don’t help to kill them until they actually died. I helped to kill them when they were still alive and I left them". When asked why did he say that the intention was to kill him dead. He replied "Yes what I meant because I saw the dead body so when they questioned me in the interview I did not mean that I helped to kill him until died. So the answer I gave included all of us.

Before the Commissioner it was contended that there was no sufficient evidence to convict him of participation in the Joint Enterprise, that the blows he inflicted on Lovano could not have caused grievous bodily harm. The concerted effort to kill Lovana only came after he had been brought back and by then Gedilly Isa said that he had gone.

Stress was laid on inconsistencies between what he said to the police and what he said in court – e. g. he told the police he beat both men; in court he said he only beat Lovana. He told the police that, as he knew, it was intended to kill the deceased men. In court he said he reached that conclusion after he had seen the bodies. He was confused and unsettled at the police interview.

The Commissioner found him an evasive witness looking for explanations to exculcape himself. He was satisfied that he had spoken freely and voluntarily with the police. In court he was not a witness of truth.

There was no evidence to indicate that he had not participated in the venture. The Commissioner concluded:

"Some of the matters advanced in Gedilly’s favour have some weight. However, on having observed and having heard what Gedilly Isa said in court, I don’t believe Isa to be a witness of truth."

"I am convinced beyond reasonable doubt that he was present and engaged in the beatings just as he told police and that he was present until not long before the deaths of Bilo and Lovana. I am satisfied that he was committed to killing the two men, Lovana and Bilo, dead or inflicting grievous bodily harm as a participant in the common objective ( which I have already found to exist.)"

"I cannot find that I am satisfied that Gedilly Isa was a participant in the beatings following the cutting of John Lovana’s back. However, as [I] find he was at all times a participant in the carrying out of a common objective whether or not he was doing security (as he says) or actually physically present."

Mr. Southey submits first that the Commissioner reversed the burden of proof by requiring the appellant to rebut his own records of interview. He relies on several passages in the judgment, e.g. "I hold the view that Gedilly Isa’s evidence may only be relied upon where it is supported by other credible evidence about some uncontrovertible fact. I do not regard his explanation as being a reasonable possibility consistent with his evidence." "I got the impression that he was not telling the truth." " I regard Gedilly’s protestation of his honesty as being self serving statements made in an effort to avoid being held responsible here and they carry no weight."

These are comments and criticisms of the way the appellant presented his case. They do not in our view establish that in his conclusion the Commissioner moved the burden of truth from the Prosecution to the Defence. He made it plain that there was no shifting onus:

"In this trial the prosecution carries the onus of proving beyond reasonable doubt each element of the counts presently contested. No shifting onus arises for consideration. When I use the expression "satisfied" in this judgment I mean "satisfied beyond reasonable doubt. The Accused carry no onus or burden of proof."

We do not accept that by reason of the sentences relied on by Mr. Southey, to which we have referred, the judge departed from this direction. The Commissioner accepted beyond doubt the prosecution case that the answers given in the police interviews were truthful answers.

Reading the judgment in regard to Gedilly Isa as a whole the Commissioner clearly regarded the prosecution as having to establish his guilt beyond reasonable doubt..

Nor do we accept that the verdicts were unreasonable or could not be supported having regard to the evidence. The Commissioner was not satisfied that the appellant participated in the beating after the cutting of Lovana’s back but he was satisfied that he participated in the common purpose and beat Lovana earlier. His own statements to the police relied on by the prosecution were sufficient evidence for that, once the Commissioner accepted that they were truthful, whereas his conflicting statements in court were not.

Mr. Southey has contended that the evidence left the Commissioner in the state of confusion as to what the evidence was. Undoubtedly he received varying accounts on a number of matters but his conclusions were clear and unequivocal.

We further reject the argument that the absence of the appellant at the time of the killing is critical. If he was not there, it is said, it cannot be a joint criminal enterprise to commit murder. For the reasons given by the Commissioner the enterprise began long before the killings, went on during long hours of beating and the participation of the appellant in the events made him a party to the joint enterprise.

Michael Kaptendou was convicted after trial of the two counts of murder (Lovana and Bilo). He pleaded guilty to wrongful confinement of 29 villagers, 11 counts of arson and 1 count of membership of an unlawful society.

Put broadly his case was and is that he was not a part of the joint enterprise and had no knowledge of what was to happen on Monday 16 June 2003 at Marasa Bay. Before these events he was concerned in the administration of a group of churches and had been involved in discussions to bring peace to Guadalcanal. He and his supporters had refused to join the JOG and they had been personally threatened by the JOG and their houses burned and their property stolen. He heard on 14 June that Harold Keke and his boys had gone to Marasa and so he went to join them. He was ordered to bring the villagers down to the beach. He did so because he thought that if he did not do so he would be punished. He tied the hands of one person.

When he came to the beach Lovana was standing there with his hands tied. He did not kick Lovana or Bilo. He told the villagers that GLF were going to burn their houses and he burned some houses. Subsequently he was told that Keke wanted to make peace and that made him very happy. On 7 October 2006 he sent a message to the chiefs in his village instructing them to make a reconciliation with the people on 8th October which on 8th October they did. We read this as an invitation to infer that because of his peaceful disposition he would not be involved in the sort of violence that happened.

His counsel argued that the joint enterprise to kill was not made until after Lovana was cut and he could not have been a party to that joint enterprise. Witnesses who gave evidence of the scene that they saw Kaptendou on the beach were challenged on the basis that he could not have been there as he was walking elsewhere.

The Commissioner found that, since Kaptendou said that when he went back to the beach he saw Lovana standing, hands tied, he was there before Lovana was cut. Other witnesses the Commissioner recorded gave evidence of his presence at the beach and as to his acts and statements there. The Commissioner found that:

"The above provides ample evidence as to his participation in the joint criminal enterprise. I find that he was encouraging the other accused by his presence and his assistance both at the beach and in the conduct of security duties. I accept and find that while it is a reasonable possibility that he did not physically beat the deceased men, what of his bringing down the villagers and what of his exhortations to them? I find that he knew of and that he was committed to the joint criminal enterprise. He captured people and detained them. His role as a Chief made him known among the people. He played a serious role in the whole exercise. If his heart did not go with the things he said at Marasa to the villagers, he still said those things to a terrified and helpless group."

"I am satisfied from the whole of the evidence that he is guilty of the murder of Lovana and Bilo on the basis of his participation in the joint criminal enterprise to kill Lovana and Bilo or inflict grievous bodily harm, to capture and hold the villagers to burn their houses. In each of the counts I find him to be a person who aided (section 21(b)(c) of the Code) in the objectives of the plan by encouraging by his presence and by carrying out security. He of course has pleaded guilty at trial on his own confession to the other counts in the information. I formally find him guilty of all counts."

The grounds of appeal, which we allowed to be argued where they were out of time, are closely interlinked and can be considered together.

The appellant first challenges the judge’s finding that Kaptendou was a party to the first criminal enterprise to kill or cause grievous bodily harm to any supporters of the JOG. It was not shown that he was present or participated in the commission of the offence. He did not know what was to be done to the two men or assist others to do it. There was nothing to show

that the "understanding or belief amongst members of the GLF" was that they should kill dead any person offering support to the JOG in the operation at Marasa (if it existed) was shared by or known by Kaptendou. He did not know of the deaths until he had finished his security duty.

The Commissioner erred in finding that for the appellant to bring people to the beach was evidence of his participation in the joint criminal enterprise.

He also erred in finding that the joint criminal enterprise to kill or harm the two men was formed before the cutting of Lovana. There could not be such an enterprise until the two men were identified and he was not present when that happened.

It was an error to infer the existence of a joint criminal enterprise from membership of the GLF. Such membership had no precise link with an intention to kill or cause grievous bodily harm to the 2 men. It was not an avowed aim of the GLF to do so. There was also a real possibility that the judge relied on what was said by Cawa in his interview. That evidence was not admissible against Kaptendou.

The Commissioner was satisfied that the joint criminal enterprise established, before Lovana was cut, was to detain the villagers and to deal with any who showed support for the JOG. Once the 2 men were recognized as having done so they were beaten or stoned for several hours by a number of GLF members.

We hold that the Commissioner was on the evidence entitled so to find. He did not find merely that because the individuals were members of the GLF they therefore had the necessary intention and did participate in the Joint Criminal Enterprise. He found that on the basis of the objectives of the GLF, the presence at Marasa Bay of GLF members, their participation in the expedition to stop the JOG getting the ammunition, their role in taking villagers to the beach, confining them subsequently and what the villagers were told by Kaptendou established that they all knew that anyone supporting the JOG would be dealt with severely. The parties to this joint criminal enterprise were not all the GLF members but only those who were gathered together on this occasion. No one there could have thought that there was to be a gentle treatment of those who were dealt with. They were
to be punished by beating, or more, which they knew was likely to lead to grievous bodily harm or even death.

If Kaptendou’s own account were taken regardless of the other evidence it might cast doubt on his participation in the joint criminal enterprise. But it is not to be taken alone. He saw what was going on and was on the beach before Lovana was cut and for some time. He talked to the villagers on the beach and indeed took some of them down to the beach. He was a member of the GLF and pleaded guilty to the unlawful confinement of 29 villagers and 1 charge of arson of a villager’s house.

Mr. McComb has provided us with extracts from the evidence where Kaptendou’s presence and actions are described. We give illustrations of this and there are others. The Rev Lionel Longaratta – "Kaptendou said that he would end up burning our house." Kaptendou and Ronny Cawa were standing near Bilo and Lovana when they were being punched with a stone. They said "If any of you join the police or follow the government you will be like the two who are laying down there" (i.e. after the death). Nicodemus Valena gave evidence that Kaptendou would not allow women to go to get food or water. He said "anyone who was found in the place would be cut into pieces and burned with the house". Kaptendou told the two men to kick each other and dance; it was said by Manakako. He also said "Kaptendou was there when the beating of the two men was going on. I knew him because he was my cousin sister." John Lauvota said that Kaptendou had said "all lives are in our hands." Kaptendou said these words when we first went to the beach and later when the boys died. Silas Peroa said that Kaptendou said that "your lives are in my hands if you do not follow what we think ... we can kill at any time".
It is impossible in the light of these extracts of the evidence, and others, to hold that there was no material upon which the Commissioner could conclude as he did in relation to Kaptendou.

We do not accept that there is a real possibility that the Commissioner’s judgment is tainted by reliance on inadmissible evidence – i.e. what was said against Kaptendou in Cawa’s interview with the police. He was well aware that such evidence by one defendant against others should not be admitted. We cannot see any risk that he did so.

Court of Appeal of Solomon Islands

Isa v Regina [2007] SBCA 10; CA-CRAC 18, 19, 20 of 2007 (16 October 2007)