Luavex v Regina [2007] SBCA 13; CA-CRAC 31 of 2006 (18 October 2007)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Goldsbrough, PJ)
COURT FILE NUMBER:	Criminal Appeal Case No.31 of 2006 (On Appeal from High Court Criminal Case No 230 of 2004)
DATE OF HEARING:	12th October 2007
DATE OF JUDGMENT:	18th October 2007 (Read by the Registrar of High Court)
THE COURT:	Lord Slynn of Hadley McPherson JA Ward JA
PARTIES:	Luavex -v- Regina
ADVOCATES:
Appellant: Respondent:	P. Dunning with S. Lawrence Mr Craig M. McColm with L. Kleinig
KEY WORDS:
RESERVED/DISMISSED:	DISMISSED
PAGES:	1 – 13

JUDGMENT OF THE COURT

In the early hours of Sunday, 12 November 2000 four armed men entered Room D at the Gizo Hotel. They wore masks over their faces and were armed with automatic firearms, and they were led by Gregory Luavex, who is the appellant now before us. Although at the time it was still dark outside, there was light in the room and some at least of the occupants were awake. They included three of the ultimate victims Bari Otuana, Ivan Reve, and Ian Chapangi, together with some other persons including women who were also in the room at the time. The three victims were shot and killed by one or more of the intruders. Another man Brianly Java, who came to see what was happening, was shot and killed outside Room D by gunfire from one of the intruders as an extension of the same incident or soon after it.

The appellant was tried and convicted of four counts of murder before Goldsborough J at sittings of the High Court held at Honiara.

Both the intruders and the four victims were members of the Bougainville Revolutionary Army (BRA). They were known locally as the Black Sharks and were said to have been engaging in crimes of violence causing fear and trepidation to people in Gizo. From the evidence before the Court it is sufficiently clear that the appellant and the group he led had received instructions from a BRA leader outside Solomon Islands to suppress the violence and disorder that was being caused locally by the Black Sharks. The appellant adopted this way of carrying out those instructions early on Sunday morning 12 November.

The evidence against the appellant at trial was helpfully divided by his Lordship into four categories. The first, which came from friends of the appellant, consisted of statements he made to them about his plans before the killings took place. It was excluded from evidence because of its unreliability. The second category consisted of evidence from the occupants of the room about events at the time of the shooting. The third was the evidence of prosecution witnesses Joseph Melobia, Paul Kobe and Chris Akosawa. They deposed to a conversation with the appellant shortly after the killings in which he gave an account of what had happened. Finally, there was evidence of admissions by the appellant to the police in which he confessed to his participation in the events and to leading those who took part in the killings at the hotel on Sunday 12 November.

In making findings of fact his Lordship analysed and evaluated the weight of those parts of the evidence that he accepted before concluding that the appellant’s guilt had been proved beyond reasonable doubt. Factually, the main problem for the Crown was that most of those in Room D had been killed by the gunfire, while the survivors had taken cover when the shooting began, or were too sleepy or confused to see or remember precisely what had happened. Nevertheless, piecing together all of the direct testimony along with the appellant’s admissions, it is possible to say that, soon after the intruders entered the room, a struggle or threat of it ensued between the intruders and Ian Chapangi when the latter tried to grab the gun being held by one of them. That particular intruder, (who may not in fact have been the appellant) started firing his weapon. A number of rounds or bursts of fire ensued, and the three victims were soon all dead or dying. It was most likely soon afterwards that Brianly Java was shot outside the room when he came to see what was happening.

Subject to one qualification to be mentioned, his Lordship’s findings of fact ought not to be disturbed on this appeal. That being so, the question is how, on those findings, the appellant in law bore criminal responsibility for the killing and murders of the four men. Leaving aside for the moment the issue of self defence relied on by the defence at the trial, it was necessary for the Crown to prove beyond reasonable doubt that the appellant had either: (1) himself actually killed the victims, with the intention of inflicting death or grievous bodily harm on them; or (2) that he was responsible under section 22 of the Penal Code for the lethal acts of others who actually killed the victims. It is conceivable that the case against him could have been supported under section 21(b) or section 21(c) of the Penal Code as an aider or abettor: see Mohun v The Queen [1966] UKPC 3; [1967] 2 AC 187; [1967] 2 All ER 58, at 61). But it seems clear that his Lordship was applying section 22 of the Code in saying, as he did, that "This armed group acted as one; its leader and all of those who were part of it become equally responsible for the actions of the group in the furtherance of its purpose." They were, he said, each as guilty of murder as any one of the men who pulled the various triggers.

In our respectful opinion, his Lordship’s application of section 22 of the Code was appropriate and correct in the circumstances proved at this trial. Section 22 deems each of two or more persons to have committed an offence of which the commission is of such a nature as to be a probable consequence of prosecuting a common purpose together. Under section 22 the purpose must be one that is "unlawful", and its commission must result from forming a common intention to prosecute it in conjunction with one another. Here the purpose was unlawful because one of its key elements was that the intruders or members of the appellant’s group would enter a room that was in the peaceable possession of the occupants, with the intention of using forcible acts or threats to subdue them. To the extent that a question of "purpose" is involved, section 22 is subjective in its operation. It depends on formation of an actual intention or purpose to do something unlawful. Otherwise it is objective: Stuart v The Queen (1974) 134 CLR 420, 437; in particular, whether or not the offence committed is of such a nature as to be a probable consequence of carrying out or "prosecuting" the common purpose depends not on what the parties themselves in fact foresaw or contemplated, but on whether or not it was such a consequence. In a very recent decision, the High Court of Australia has held in relation to the corresponding provision in the Queensland Criminal Code that a probable consequence means one that "might well happen". See Darkan v The Queen (2006) 80 ALJR (Part 8).

Applying these tests, there can be no doubt that the requisites of section 22 of the Code were satisfied here. When a group of men go in the night masked, and armed with high-powered firearms, intending to force their way into someone else’s room in order to do violence upon them, there is every probability that firearms will be discharged and some one or more of those present will be shot and killed. That is the reason for bringing and using guns on such occasions. Murder was thus in fact the probable consequence of carrying out the common intention or purpose because it was something that might well happen. So it was here. The appellant was therefore rightly held criminally responsible for the murders that were committed on that night, and that is so whether or not it was he personally, or one of the others among the intruding group, who fired the fatal shot or shots. The same applies to the killing of Brianly Java outside Room D in the Gizo Hotel. He too was one of the Black Sharks who were the intended targets of the violence planned and carried out on that night, and so under section 22 came within the scope of the unlawful common purpose of the intruders.

In describing the actions of the intruders including the appellant, his Lordship described the sequence of events as it has been set out above. He described it in that way in each of paragraphs 13, 24 and 29 of his reasons for judgment. In paragraph 29 he remarked that there was evidence, and he had found, that when the intruders (as we have called them here) entered the hotel room the occupants or one of them resisted. The learned judge went on to say that, "After that brief resistence of an unarmed man, the group proceeded to shoot the occupants of the room without further ado. This was done, as the appellant himself said, because if it had not been done they would have killed him ..." The account of events as found by the learned judge in paragraphs 13 and 24 is to similar effect.

Counsel for the appellant before us has, however, drawn attention to what was said by his Lordship in paragraph 22 of his reasons. His Lordship there referred to a statement made by the appellant when he was charged, to the effect that the occupants of the room, had "retaliated and shot us, so my boys returned fire in defence and four of them got killed." Having mentioned this, the learned Judge said he found that the accused made those remarks when charged, "but also that this is indeed what happened." It was on this statement that counsel for the appellant founded his submission on appeal that the learned Judge had not properly considered the defence of self defence relied on at the trial.

It must be conceded that there is an apparent inconsistency or ambiguity in the findings in paragraphs 13, 24 and 29, compared with those in paragraph 22. The latter accepts that, when Police Officer Eria charged the appellant, he said that it was because the occupants of the room had "retaliated and shot us" that his men "returned fire in defence, and four of them got killed". Up to this point his Lordship appears clearly enough to have been simply recording or recounting in his reasons what it was that the appellant said when charged: the Judge added "I find that this was the response of the accused to the allegations put to him." In this, his Lordship was not, we think, meaning to say that he thereby accepted that particular version of events. However, he then went on in paragraph 22 to add:

"Taken together with the evidence from Room D that one of the occupants challenged the group that entered the room, I find that this is most likely to have been the case within the room. Not only do I find that the accused made these remarks when charged but also that this is indeed what happened."

The question is what was meant by his Lordship’s statement that one of the occupants of the room "challenged" the intruders.

In order to resolve this question, it is necessary to refer to the evidence at trial of what happened in Room D when the intruders entered it. The only one of the occupants who had not been drinking that night was Sarah Lite, and it is evident that it was her evidence at the trial that formed the basis for his Lordship’s findings in all four of the paragraphs referred to. She testified that the door to the room was left slightly ajar that night. Suddenly two men with guns kicked it open. Ian Chapangi ("the man from Guadalcanal") had been sitting on the floor and he sprang up. "He just jumped for the gun", she said, "so they shot him." Sarah seems to have been saying that he jumped up when the door was kicked open by the intruders, and "I think he wanted to fight with them who were pointing the gun"; but she did not see him grab the gun at all. They shot Ian first, and then Bari Otuana (who was sitting on the bed), and then the other man (Ivan Reve), who was sitting on the floor between the beds. Sarah was able to describe where each one of them was struck by bullets.

There was evidence that some of those in the room also had guns. Sarah said that Bari had a gun, as well as Ivan. She had seen them (the guns) when she woke up. They were "doing something" to or with guns but she did not know what they were doing. "They were putting things inside." It is possible, of course, that they were frantically trying to load the guns; if so, they were shot before they could do so.

There is no reason to doubt the truth of Sarah’s sworn testimony about these events or to question its accuracy. The appellant’s assertion to Police Officer Eria on being charged was admissible and admitted in evidence; but the appellant did not testify at the trial and he was not cross-examined. There was therefore good reason for preferring Sarah’s account of events. The only response from the occupants was Ian’s lunge or grab for the gun, after which, his Lordship said, the group proceeded to shoot the three occupants of the room "without further ado." This is what the Judge meant in saying that this was done, "as Luavex himself said, because if it had not been done they would have killed him." His Lordship rejected self defence because the response by the appellant’s group was disproportionate. When Ian jumped at the gunman or gunmen, the immediate result was gunfire:–

"The response was not confined to disabling, or even to killing, one person who offered resistance ... it extended to the immediate killing of another two people within the room."

There was no attempt to warn the victims or to call on them to surrender. They were simply shot out of hand. Brianly Java was not even in the room when he was killed. He presented no threat to anyone. No reliable evidence about the direction of the gunfire can be derived from the presence of bullet holes in the walls or ceilings. There was no expert ballistic evidence about them or their angle of entry.

In rejecting self defence we consider that his Lordship was correct; and that remains so even though on this issue the onus of proof lay on the Crown to displace the defence beyond reasonable doubt. We also agree that section 204(c) of the Penal Code has no application in the present case. It is capable in some circumstances of reducing the offence to manslaughter if in causing the harm to the victim the accused "acted from such terror of immediate death or grievous bodily harm as in fact deprived him of his power of self control". Even if (which may be debatable) the onus under this provision rests on the Crown, there is nothing in the evidence here that was capable of fairly raising it at the trial. What we are confronted with here is four cold-blooded murders that were calculated and deliberate and not the product of terror on the part of the killer or killers.

This leaves for consideration another reason put forward for excusing the appellant that was raised on his behalf on the appeal. It is what Mr. Dunning of counsel described as the doctrine or defence of necessity. It must be said at once that the Penal Code of Solomon Islands contains no express provision recognising any such doctrine or defence. Like many of the other criminal codes in the Pacific, Africa and elsewhere, the purpose and effect of these codifications is to preclude resort to the common law for the purpose of determining questions of criminal responsibility (Part IV of Solomon Islands Penal Code) as well as of substantive offences. See, for example, Wallace Johnson v The Queen [1940] AC 231; Brennan v The Queen [1936] HCA 24; (1936) 55 CLR 253, 263; Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, 437. See also Sir Harry Gibbs writing extra judicially, in (2002) 77 Australia Law Journal 232.

On the other hand, it does seem to us plainly arguable that, as Mr. Dunning in the carefully researched argument he submitted to us, the Penal Code may have preserved the substance of the common law "defence" of necessity, if there is one. It may well have done so through the presence in the Code of the word "unlawful", or derivatives of it, in sections defining elements of offences, such as murder (Code section 200) and manslaughter (Code, section 199). See Code, section 3, providing that the Code is to be interpreted in accordance with principles of legal interpretation obtaining in England, "and expressions used in it shall be presumed ... to be used with the meaning attaching to them in English criminal law ..." To demonstrate that the common law recognizes a defence of necessity, Mr. Dunning took us to passages in Hale’s Pleas of the Crown; R v Dudley & Stephens (1884) 14 QBD 273; and Re A (Children) [2000] EWCA Civ 254; [2001] 2 WLR 480, 533, 558 – 573, and elsewhere. See also Tilonko v AG of Natal [1906] UKLawRpAC 45; [1907] AC 93, at 95.

Assuming that the doctrine or defence is available, the questions are what it is, and how it could be applied here to exempt the appellant from criminal responsibility. In his reasons for judgment in Re A (above), Brooke LJ at 573, acted on the views on this subject of Sir James Stephen. According to that learned author, there are three requirements for its application. They are that: (i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; and (iii) the evil must not be disproportionate to the evil avoided.

Applying these requirements or rules to the present case has the consequence that the attempt to invoke the doctrine of necessity here inevitably fails. The act on which the appellant was tried and of which he was convicted was murder; that is, the killing here of four men with the intention of causing their deaths or of inflicting grievous harm. What was the "inevitable and irreparable evil" that that act of killing was needed to avoid? The submission that was put was that it was the saving of the people of Gizo from the depredations of the Black Sharks. It is not clear whether that means all Black Sharks in Gizo, or only those in the hotel, or in Room D on 12 November 2000. It was said that the killing of the four men was necessary for that purpose to be achieved. At the time, the police at Gizo were not armed with guns, whereas the Black Sharks were. And it was also said that the evil inflicted by means of those killings was not disproportionate to the evil of permitting the Black Sharks to continue with activities in the area.

There is a remarkable dearth of precise evidence about the extent to which these individual victims were engaged in any and what criminal activities in Gizo at the time. Mention was made in a general way of murders, rapes and robberies. No doubt such offences were being committed, as they are during peacetime, and no doubt many more of them were being committed in 2000 than is ordinarily the case. Law and order had broken down in many parts of Guadalcanal at the time. It does not follow that the four victims of these killings were personally responsible for that state of affairs, or that their behaviour was so disruptive and dangerous to other people in Gizo that the only available method of stopping it was by killing one or all four of those individuals without allowing them to speak in their defence. Throughout history, the activities of self-appointed vigilante groups have been notorious for killing the wrong people at the wrong place and time. If the appellant and his group were exercising some kind of quasi-military discipline or justice, they ought to have extended its benefit to these victims before simply killing them out of hand. As it is, Mr. David Ashe, the manager of the hotel at the time, had no specific complaint about the behaviour in the hotel of the four men who were killed. Their presence naturally frightened some of the staff; but he said they paid for their accommodation and for the other benefits they ordered in the hotel. Their conduct was not such as to call for their peremptory elimination from the face of the earth as a matter of "necessity" whether "reasonable" or otherwise.

In support of this defence, an attempt was made to invoke the authority of the Police commanding officer in the area, who was Commander Ora. Examination of what the appellant says he heard from his BRA superiors about a supposed approval from the Western Provincial Government and the Police Force fell well short of amounting to an authorization to kill or even to carry out the night raid on the unsuspecting victims in Room D. In any event, it is not the law that the Executive Government is empowered to authorize or encourage killings and murders in order to pacify the country. Not even martial law confers that power. The use of force to prevent riots and insurrection is a very different thing from the process of shooting men in their beds or bedrooms at night. The additional attempt to justify these killings on the ground that they were "necessary" in order to liberate the women from bondage in Room D is disingenuous. Being in the room might not have been the happiest time for some of them; but the notion that the women had been abducted, and so were being liberated by the appellant and his mob, is nothing short of risible. In any event, it will be recalled that Brianly Java played no part in the abduction or detention of any of the women nor of any one else. There was no "necessity" to kill him or other individuals who were slain on early on Sunday, 12 November 2000.

In our opinion the appellant’s appeal against his convictions should be 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