Diobesi v Regina [2007] SBCA 12; CA-CRAC 29 of 2006 (16 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from a judgment of the High Court of Solomon Islands (CRC No. 358 of 2004)
COURT FILE NUMBER:	Criminal Appeal No. 29 of 2006
DATE OF HEARING:	28 September 2007
DATE OF JUDGMENT:	16 October 2007
THE COURT:	Lord Slynn of Hadley P, McPherson JA Ward JA
PARTIES:	Rockey Diobesi (Appellant) -v- Regina (Respondent)
ADVOCATES:
Appellant: Respondent:	Mr Ken Averre Mr Craig McConaghy
KEY WORDS:
RESERVED/DISMISSED:	DISMISSED
PAGES:	1 – 12

JUDGMENT OF THE COURT

The appellant and four others were jointly charged with the murders of two men on 26 January 2002. He was acquitted on the first count and convicted on the second count.

The prosecution case is that the deceased, Max Ula, was a special constable and, with two others, had been taken to a compound of the Malaita Eagle Force, referred to as Lion Heart compound, where the appellant, a member of the MEF, was working as a security guard.

The three men attempted to escape. One was fatally shot and his body brought back. Max Ula was also caught and brought back at the same time. He had been wounded by his captors. Shortly afterwards, the wounded man was taken by three other men from Lion Heart in a car, driven by the appellant, to a place by the Lunga River. The body of the other man had been placed in the boot. At the river, the corpse was dumped and the injured man then shot dead and his body also left.

In the trial, the learned judge found there was no case to answer in respect of all accused on count one. He similarly found no case against the appellant’s co-accused on count two. No submission was made on behalf of the appellant and the trial proceeded against him alone. The learned judge stated that he would give his reasons for the ruling later but he has not done so. However, it is clear from the judgment that the reason for the acquittal of the other accused was that the judge could not accept that the evidence of the prosecution witnesses was reliable. As a result, it appears that the only evidence against this appellant was his statements when interviewed under caution by the police, which were not challenged. In court, he made an unsworn statement.

His defence throughout the trial was that he only took part in the murder of Max Ula because of duress. In his statement to the police, he had said on more than one occasion that he had been "forced" by Jimmy Rasta,, his ‘boss’ in the MEF of which he admitted he was a soldier, and Patrick Iro.

In his unsworn statement, he confirmed that he had told the truth in his interview and he amplified the nature of the compulsion:

"In my interview with police I explained that Rasta forced me to be the driver. Patrick, Jobson Brown, Kiwa and Ricky were by his side when he gave me that order. They are from a different tribe from me. Patrick threatened that I would be killed if I did not obey that order. Kiwa Lusibaea (Rasta’s brother) was holding a truck spring, and he threatened that he would break my head if I did not obey."

The evidence was that none of the men named in that passage accompanied the appellant in the car but the three men who took Max Ula in the car were also present at the time the threats were made. One of them had a loaded gun which was used to kill the victim at Lunga.

We are told that the appellant also said in his unsworn statement that he did not want to kill anyone. No such reservation had been made during the interview. It should be added, that he admitted in his interview that he was experienced in the use of firearms because he carried a rifle when he was acting as security at Lion Heart and expected to have to use it if anyone shot at the base.

The appeal is on the single ground "that the prosecution having conceded that compulsion was raised pursuant to section 16 Penal Code, the learned judge erred in finding that it had been negated beyond reasonable doubt."

Section 16 of the Penal Code provides:

"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 or do him grievous bodily harm if he refuses, but threats of future injury do not excuse an offence."

As has been stated, the suggestion of compulsion was first raised by the appellant in his interview under caution by the police. He referred to Rasta telling the men present, including the appellant, that the first man had died so the other must die as well. The appellant continued:

"Then he ordered four of us. He ordered me to drive. I would drive. You four take these men to the bush. You will drive and the three men will shoot these men"

He saw that one of the men accompanying him had a gun and he saw Rasta’s wife give a magazine of ammunition. No other person, including Rasta and Patrick, had a gun at any stage.

Much later in the interview he explained;

"I was standing at the front of the workshop then that man [Rasta] gave orders to us. He came then gave the order. He forced me."

This was repeated later:

"They already put him [Max Ula] in the truck before he gave the order. He forced me that I must be the one to drive. The two men with the three men who stood at the back forced us."

The appellant’s view of Rasta is further shown in a later passage after the final return of the men to the base:

"The thing that Rasta said was not to tell anything to the Police, the story ends with you."

He was asked why he obeyed Rasta in respect of the order not to say anything about the murders and replied:

"We just obeyed him in case he did anything to us. He spoke to us we were all just silent. It was like a big thing so when he spoke to us we were frighten of him so we just obeyed him in case he might do something to us."

In his judgment, the trial judge found the prosecution had proved the accused’s complicity in the killing and then moved on to consider the defence of compulsion. He accurately set out the ingredients of the defence as stated by this Court in Kejoa v R [2006] SBCA and the burden on the prosecution to disprove it if raised.

He continued:

"47. The court is of the view that the defence of compulsion must be considered under section 16 of the Penal Code and the clear authority in this jurisdiction. In this regard the court must have regard to the circumstances of the case and the evidence as appears in his record of interview and the unsworn statements tendered to the court.

48. The questions that need to be considered does the circumstances come with the requirement of section 16. The accused said he was forced through Rasta’s order to drive the vehicle containing the special constable. He did not say what the threat was or that the threat will result in instant death or grievous bodily harm, all he said was "he forced me".

49. I am of the view the court must determine in the light of the defence whether the accused was compelled to drive the vehicle containing the special constable to his death.

50. Clearly the compulsion must be followed with instant threat to be killed or suffer grievous bodily harm. I find there is little evidence to suggest that the accused was compelled to do what he was ordered to do."

The judge then refers to the judgment of this Court in Hese v R [2006] SBCA in which the Court deals with the question of whether, in that case, the compulsion was because of the threat or because the appellant had been a member of an organisation which required him to obey orders or be killed. The judge continued:

"52. I am of the opinion that I must ask myself the same question, was the accused compelled to assist in the murder of the special constable and was there a threat that he would be killed instantly himself? And why did he obey Rasta’s order? Was it solely because of the threat and factors beyond his control or was it because of the position he found himself in because he was part of Rasta’s organisation?

53. I accept that the answer to the question is in the negative. I do not consider that the accused was compelled to participate in the murder of the victim. Further there is no evidence to suggest he would be killed instantly, or that the threat remained throughout the period of his involvement in the incident.

Decision

I find the accused is a participant in the killing of the special constable and the prosecution has negatived the defence of compulsion, beyond reasonable doubt."

In any criminal case, the judge should ensure that he explains the reasons for his decision. In this case we must say, regrettably, that the judgment is almost totally deficient of any such explanation.

The only evidence was that stated in the interview followed by the unsworn statement. It follows, therefore, that as the judge must have based his opinion on it, he must have accepted the appellant’s overall description of events that day as true and accurate. He makes no reference - understandably in light of his opinion of the witnesses - to the prosecution evidence. As a result, we find it difficult to see what it was which justified his finding that the prosecution had "negatived the defence of compulsion".

If, as appears probable, he felt the interview and the unsworn statement of the appellant were insufficient to support the claim of compulsion in the terms of section 16, he should have said so. If that was his conclusion, the result was not a negation of the defence by the prosecution as he stated but a failure by the accused to establish it at all.

This was a very serious charge. The accused is entitled to know the basis of a finding against him. Equally this Court needs to know the basis of the judge’s decision. As we have stated, the judge accurately set out the law and the manner in which he should approach the evidence. He should then have passed on to explain how he applied that to the evidence. It is not sufficient simply to state the conclusions without any analysis of the evidence upon which it is based.

His statement that he found little evidence to suggest the accused was compelled to do what he was ordered to do is unhelpful. Was that because he did not believe the little evidence at all or that he felt that, even in its entirety, it was insufficient?

The evidence from the appellant’s interview was that he knew, by the time he was ordered to drive the car, that it contained the body and that the intention of the three men accompanying him was to shoot their prisoner. The willingness of the men present in Lion Heart to kill had been all too clearly demonstrated shortly before and the intention of the three men he was to drive in the car was chillingly apparent. One of the three was armed with a rifle which the appellant, who was familiar with rifles, knew was loaded. That man sat in the seat next to the appellant.

This Court has no way of determining from the judgment whether the judge disbelieved that evidence or believed it but found it insufficient to establish compulsion. Similarly, in light of the foregoing, the judge’s conclusion in his paragraph 53 that there is no evidence that the appellant would be killed instantly or that the threat remained throughout the period of his involvement needed to be explained and it was not. Additionally, his negative answer to the many facetted question he had posed in his paragraph 52 is ambiguous.

Counsel for the Crown correctly points out that an unsworn statement is not evidence. The value of an unsworn statement is clearly less than that of sworn evidence tested in cross-examination. However, a judge may not simply ignore it. The judge in the present case acknowledged that he had considered it but gave no indication of his evaluation of its worth or whether he accepted the account of the threats from Patrick and Rasta’s brother and, if so, why he did not consider they were sufficient to found the defence. As we have already stated, there was no evidence from the prosecution outside that from the appellant.

On the other hand, we note that the evidence of the appellant’s actions after the order to drive could be seen as suggesting he was not a reluctant participant. Once at the Lunga River and before Max Ula was shot, he assisted, without any suggestion of being ordered to do so, in lifting the body of the other dead man out of the car boot to dump it. After the second man had been shot, the car would not start and the appellant left the scene. That was a clear opportunity to escape but, instead of taking it, he went to seek another vehicle in order to return and collect the car. Was that because of his continuing fear of the consequences of disobeying or was it the action of a willing member of Rasta’s group of members of the MEF?

It is a well established principle that an appellate court will only interfere with the primary judge’s finding of fact in exceptional circumstances. This is based, inter alia, on the undoubted advantage the judge had from seeing and hearing the witnesses. In the present case that applies only to a limited extent. The evidence is all in the written statement of the appellant. Although the judge saw and heard the appellant make his unsworn statement, he does not indicate whether he disbelieved it or believed it but found the explanation inadequate.

As the evidence is all in the written interview, this Court is in as good a position as the trial judge to assess it. We accept that the threat by Rasta and his henchmen prior to the drive could have amounted to a threat instantly to kill the appellant even after they were no longer present because the threat was perpetuated by the presence of the other men and the lethal weapon they had with them. However, the account the appellant gave of the events before and, more particularly, after the murder, contradicts any suggestion he was acting under compulsion sufficient to establish a defence under section 16.

In respect of the unsworn statement, even accepting the account he gave of the threats and taking that at its highest, we do not consider it is sufficient to overcome the matters, described by the appellant in his interview, which show a willingness to be involved in the operation without any further threats.

Applying the test the trial judge applied, we are satisfied beyond reasonable doubt that the appellant was not acting under compulsion and was a willing participant in the events leading to the murder of Max Ula. There is no challenge to the judge’s finding that those events proved, to the criminal standard, the appellant’s complicity.

The appeal is dismissed.

Lord Slynn of Hadley P
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Ward JA
Member of the Court of Appeal