Malaketa v Regina [2007] SBCA 5; CA-CRAC 35 of 2005 (30 March 2007)

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NATURE OF JURISDICTION:	Appeal from a judgment of the High Court
COURT FILE NUMBER:	Criminal Appeal No. 35 of 2005
DATE OF HEARING:	20th March 2007
DATE OF JUDGMENT:	30th March 2007
THE COURT:	Lord Slynn of Hadley P Adams JA Salmon JA
PARTIES:	Malaketa (Appellant) -v- Regina (Respondent)
ADVOCATES: Appellant: Respondent:	Stephen Lawrence Nicholas H Mirou
KEY WORDS:
RESERVED/DISMISSED
PAGES:

The appellant, William Malaketa, was indicted, jointly with Clement Sisifiu, Peter Daefa and Redley Clement Sisifiu, for the murder of Richard Ramo on 1 January 2003 at Sun Valley. The trial took place before the Chief Justice, who convicted the appellant, Sisifiu and Daefa of murder but acquitted Redley Sisifiu. The appellant, Sisifiu and the deceased were brothers. In brief, the prosecution case was as follows. The deceased was alleged to have insulted relatives or members of the families of the accused. The accused decided to visit him to procure customary compensation. When the deceased was confronted, he making any insults and refused to pay any compensation. The appellant struck the deceased on the face and swung a knife at the deceased but missed, striking Sisifiu instead. The deceased fled but was prevented from escaping by Daefa and Redley and possibly others. He turned and was then stabbed by the appellant, the knife entering his body under the armpit and fatally injuring him.

2. The learned trial judge erred in the circumstances of the case in holding that the fact the appellant’s version of events was not put to the prosecution witnesses damaged his credibility.

4. The learned trial judge erred in not instructing himself in relation to intoxication when considering whether malice afore-thought had been proven beyond reasonable doubt.

5. The appellant was denied a fair trial on the basis of incompetence of counsel in the following respects:

(b). The issue of intoxication was not properly raised by way of evidence from the appellant, cross-examination of witnesses or submissions;

(c). A voir dire was not called for in respect of the admissibility of the appellant’s record of interview despite instructions having been given of threats by the police;

(d). The issue of provocation was not properly raised by way of evidence from the appellant, cross-examination of witnesses or submissions; and

(e). The questioning of the appellant in examination in chief deprived the appellant of the opportunity to give exculpatory evidence.

6. The failure of the prosecution to disclose the statements of the eye-witnesses Goreta and Fa’alu prior to cross-examination of the witnesses gave the prosecution an unfair advantage of the trial [sic] and deprived the appellant of a fair trial.

On the appeal, the appellant relied on two affidavits. In his own affidavit the appellant explained why his notice of appeal was filed out of time and made some additional points: he identified a hand-written note made by his counsel at trial, Mr D Tigulu, as correctly noting his instructions; he said that he noticed that, during the trial, Mr Tigulu was not cross-examining the witnesses about parts of their evidence that differed from his account; he said he told Mr Tigulu that the knife "used in the offence" was not his and that the police had forced him to say it was during his interview; and that he only gave his account to Mr Tigulu on one occasion. Counsel for the prosecution in this Court did not seek to cross-examine the appellant on his affidavit. We should therefore treat it as undisputed. The second affidavit relied on by the appellant is from his solicitor, attaching various notes of instructions. These include a narrative account made by Mr Tigulu – as identified by the appellant – and copies of statements made by Crown witnesses containing marginal notes made by Mr Tigulu. It should be noted that

I don’t know anything about the incident leading to the fight. The day before New Year (2003) we were at Burns Creek. We just enjoyed having drinks until night time. About midnight, Peter Daefa, Flickson and Annette who is in Western Province came to us. They said Richard Ramo’s group attacked them at Lungga bridge. Peter Daefa and his group started from Henderson – from Redley Sisifiu’s house.

When fight at Lungga Bridge happened, we were not aware. We only saw blood and wounds on Flickson’s hand shot with a bottle.

We asked what happened so they related the attack. We then proceeded to ask compensation straight away – around midnight too.

We went to Sun Valley – they gave us one red [shell] money. We said matter now sorted out – we are same people. Our big man agreed to settlement. We then retreat to the same place we were drinking earlier on. We continued to drink until daylight. Around 6 am we saw Peter running to us again. I went to another wantok’s home. Peter came and told his father. Peter said Richard wanted to kill them with knife at Redley’s house at Henderson. Fortunately, Richard was disarmed and the knife was removed from him. Richard was taken away.

Peter, Clement and them went first – on reaching Burns Creek School they thought of me so came back for me. That was when I followed them. We all walked. We all arrived at Lungga Bus Stop area before proceeding to Sun Valley. We followed main road.

I heard about swearing in the morning when fight happened. The third time. After that fight/challenging by Richard. Peter Daefa in front of us at Burns Creek. Me, Daefa and Clement went to Sun Valley. On nearby junction, Peter said we should go to Redley’s house first to confirm fighting and swearing by Richard. We did not mean to fight.

We didn’t reach Redley’s home when Clement went straight to Richard’s house. He asked for Richard -- wanted to ask him if swearing was true or not.

Richard’s sister called him. We stood on main road -- looked from a distance to the house. That was me and Daefa. When Richard came out he denied swearing. Clement said wanted to sort out matter and he pays compensation. That time he said I didn’t swear at you people so that I must pay compensation. Refused to give compensation. Richard then started moving around and he wanted to fight.

I saw him wanting to fight instead of trying to solve the matter. I then ran to the house where Clement and Richard were. I saw a small knife in front of their house. Held the knife in my left hand. When I, Clement and Richard – I told Richard he always show off. There’s no doubt about him swearing – his known attitude. I was drunk that time so talked a bit the normal.

Richard sense that we held knife and said "kill me with the knife". He even swore at me if I don’t kill him. Held knife on right hand -- stepped forward and punched Richard with my left hand.

Clement tried to stop us arguing and fighting. Only two women were there that time. When we struggled they ran away. Richard struggled to attack me – continued asking for the knife (challenge). I whip with knife but missed. Second time he wanted to attack me – I was afraid of him too. He is a big man. Don’t know how the knife hit him the second time, didn’t see blood, etc.

Richard held two stones to shoot me with. I avoided both stones before Richard ran away. Didn’t see where ran to. Stories say he shouted at the place he ran to - before falling down. This made me wonder whether my knife hit him or something else?

I stood up for some time thinking about what had happened. This time one person came and wanted to fight me. I was drunk so I could not recognize him too. Later was told that Bana was the one who wanted to fight me.

Told Bana I was in trouble -- just leave me alone, so he left me. I then left to avoid further trouble. I followed Lungga River to Fera’aladoa Village – used to be occupied by Baegu’u people before.

I stayed there and thought of two young persons who followed me that time. I came to Burns Creek and found out that Redly took them to town. No intention to kill. Only wanted to ask compensation.

When called in at Burns Creek no one was there – all fled for safety reasons. I went home – Malaita Province. My people at home found out about my hanging around at home and news sent to the police. I was then accompanied by PFF Officers to Honiara. That became possible when a reconciliation ceremony was held on this matter.

I was not arrested -- just turned myself up. For safety reasons I had to be escorted by PFF Officers.

It will be seen that the appellant’s instructions were in a number of respects confused. However, they expressed the following crucial elements as to the events immediately surrounding the infliction of the fatal wound –

It is important to bear in mind that these are notes in English of a conversation almost certainly conducted in pidgin. In a number of respects the instructions seem to be unclear. It is obvious that Mr Tigulu needed to have the appellant’s response to the particular facts alleged in the prosecution case. As he recorded, he read the witness statements to the appellant and annotated the papers with the "points of contention". These statements have been produced. They show marginal notes next to parts of the statement. Having regard to the process described by Mr Tigulu, it should be accepted that those parts which are not subject to a comment were not in contention. These papers give a very different picture of the appellant’s instructions.

Statements were supplied of more persons than the prosecution ultimately called. It is not necessary for present purposes to deal with all the statements. We mention only those of witnesses ultimately called. The first prosecution witness was Rilen Sesi, the sister of the deceased. In her statement she said she was present when the appellant, together with the other men, entered "our compound" led by the accused Sisifiu. Rilen went on to say --

Once Richard came and stood in front of Clement, Malaketa then suddenly punch him with his right hand and landed on Richard’s left jaw. In fact it appears like Clement was trying to apprehend him so that they would kill Richard. Clement was stretching his hand to obstruct Richard from escaping and that is why they have successfully attacked him. The incident was taken place very fast just after Richard was punched.

In fact, I had plead with them not to kill him as I will meet any compensation that they intend to ask for the sake of their coming. I was crying trying to defuse the situation but wasn’t materialized as Malaketa aggressively pulled out a bayonet knife very very sharp on both sides and stabbed Richard. He used his right hand as the knife was possessed in his right hip. I was just standing next to them with the sisters (Nelly, Jesi and Annette) and brothers (Brian, Aluga, Robert, Leden) probably about 3 meters. We were witnessing this episode just under my house around 0935hours in the morning.

There were two attempts made by Malaketa trying to stab Richard. The first was missed and had landed on Clements’s left thigh. Then he finally made it which Richard was stabbed on his body on the upper part of his right ribs. Once he was hit by the knife he had attempts to escape when suddenly DAEFA went and punched him on the face with his right hand. This was because he had seen his father Clement was bleeding due to the injury accidently caused by Malaketa on his father, Clement.

Then Richard finally made his way and escaped with the wound on his body. Malaketa still chasing him with the knife and when he did not catch him, he turned around to a pawpaw tree besides our house and stabbed it. Then he turned around and say these. "Me no care long life time. Me life time nao ia. Yu fala no save long Mota. Mota, Mota nao ia". Then he walked past our house and find his way from our compound. We were all frightened because they came in big number and the fact that they were armed with knives especially Malaketa.

In the margins next to the first of these paragraphs counsel has noted: "Punching after struggle and intention to attack me. Clement did not hold RR"; "No-one present, women ran away". At the end of the paragraph is the note "when crowd came no more fight". Next to the second paragraph is the note, "Said tired of paying compensation, and not to be paid". At the end of the paragraph is the note, "Tired of RR’s attitude". Next to the third paragraph’s first two lines appears, "Did not see knife hit Clement". Next to the quote in the fourth paragraph is the note, "Denied saying alleged words" and another undecipherable note.

When the whole statement is considered – the non-contentious part together with the contentious part – a very different account emerges from that which had been noted in the narrative instructions. It is an account which raised the possibility – but only just – of self defence with respect to the blow to the deceased’s face was concerned but not so far as the use of the knife was concerned.

The statement of Mr Brian Aluga is of particular importance. The crucial paragraphs are as follows:

I was then told of the situation which I first had no idea about. I sat under the house with my sister and her husband, Mr Robert Rarai. We were sitting under the house when suddenly we heard shouting coming towards our house. They then asked for Richard Ramo in an aggressive tone. Mr Clement Sisiviu who was also in the group of men coming to ask for compensation said, "Wea nao Richard, talem hem kam aot long here. Mekem mitufala fight. Mi no fraetim gun or knife."

At that time, Richard was asleep in the house with his wife. Richard’s house to my house is about two – three meters apart.

Richard then got up and went outside and walked towards them to solve the matter in a peaceful way. He wanted to explain to them what he said and then on to the real issue.

Without completing what he wanted to say, Mr Richard Ramo was attached by the men and punched him. I was standing about 4(four) meters away from where they punched Richard Ramo.

Richard, while he was continuously punched, started to move back. Mr Clement Sisifiu grabbed hold of Mr Richard Ramo to disallow him from moving or escaping. The first person namely Malaketa made his first attempt to stab Mr Richard Ramo. Mr Richard Ramo then swung away and the bayonette then landed on Clement Sisifiu’s thighs. Richard Ramo then had access to escape and ran around the house but was blocked. He (Richard Ramo) wanted to run towards us but was blocked by the group of men and Redley made an attempt to stab him but Richard Ramo missed the knife.

He (Richard Ramo) then tried to escape towards us when Mr Malaketa held his bayonette in his right hand and stabbed Richard Ramo under or below his right arm-pit. Richard Ramo did not fall – but continued to run. Malaketa with his bayonate in his right hand chased after Richard Ramo. Richard Ramo continued to run and about 15 to 20 meters away from where we were then collapsed.

I wish to confirm that the following men were responsible in blocking Richard Ramo before Malaketa actually stabbed him to death.

All of us including Clement Sisifiu and his son, Peter were behind Malaketa when chasing Richard after his first attempt to stab him. I can easily saw what exactly happened as I was very closed to Malaketa. The other 3 men mentioned above were standing very close to the house and that is where the blockage was when Richard tried to escape from Malaketa, Clement Sisifiu and his son, Peter.

1 Raedley is holding a small knife in his right hand. He is the man attempting to stab Richard when tried to escape from Malaketa and others.

2 Raedley Fa’alu and Goreta blocked his escape route and shouted saying "killim hem, killem hem". This statement is apparently used during fights or arguments especially when people got angry on each other. I assumed from their adding statement that they have intention to kill Richard that is why they shouted the words "killem hem, killem hem".

3 The blockage took place very close under the house giving no way for Richard to turn from them. So when Richard turned back from them, Malaketa who is just behind him took his knife and stabbed him straight away under his arm-pit.

4 The men still in their blockage positions shouted again for the second time saying "killem hem, killem hem" but Malaketa responded and said, "me busam and hem kasem hem finish". From then we can see Richard reverted from them and tried to escape the route to Roynold William’s residence. Malaketa chased him and turned around and stabbed a pawpaw when he cannot catch Richard. The men after spending some 2 seconds under the floor reverted to the road and escape. Malaketa escaped after them.

Likewise, Uncle Leeder, is also witnessing the incident as he was in the kitchen doing cooking. The kitchen is some 3 meters from the house but he was also with me when Richard was stabbed.

There are only two marginal "points of contention". The first is next to the last sentence in fourth paragraph where next to two drawn lines obviously indicating the part in contention appears the word "Disagree". The second note is next to the enumeration of the persons said to have been "blocking" the deceased before the appellant inflicted the fatal blow. The passage from the beginning of the paragraph to the naming of Goreta is marked and the note appears, "Disagree as these persons not close to scene". Given that the following details of what it was alleged occurred concerned the activities of the named men, it can be accepted that, in effect, the appellant was disagreeing with this witness’ account of what occurred so far as impeding the deceased’s flight was concerned. However, the earlier account of the interaction between the appellant and the deceased supported the substance of Rilen Sesi’s statement. More importantly, it appears that the appellant did not dispute anything other than the alleged blocking of the deceased’s flight.

Leedon Aluta’s statement also contains marginal notes made by Mr Tigulu. The material part of the statement is as follows –

On the 1st day of January (New Years day) I got up in the morning and went to the kitchen to cook. It was at that time when Clement, other name not known, came to our house and and called for Richard Ramo in a harsh tome and manner. I knew nothing about the problems that happened that night. As he was calling Richard came out of his house to meet Clement. Richard told Clement to calm down, so as to enable them to strengthen the matter.

Clement said, "Iu nao man laek fight ia", and he grabbed Richard. The other fellows who followed Clement arrived and attacked Richard. Malaketa got out his bayonette and stabbed Richard, but Richard moved away and the bayonette landed on Clement’s thigh. Richard then escaped from Clement and ran behind the house. He was then chased after by the other guys who then blocked him and Malaketa then stabbed Richard below his right ribs. He (Richard) then ran away and collapsed some metres away. The group of men who accompanied Clement did not chase Richard again. The men at our place then rushed everywhere to find transport to get Richard to the hospital. It was about a metre and a half away from where Malaketa stabbed Richard.

The only note made by Mr Tigulu is at the end of this statement. It reads: "No one close. Only after the fight everyone ran to the scene".

I would like to say here that I am one of the eye witnesses on the alleged murder incident. That what I would be again put in clarification of the matter is of all truth nothing but the truth.

1. That the followings were the one’s that I seen blocking Richard Ramo whilst trying to escape after the first attempted stabbing.

Richard find a chance after she was stabbed and tried to escape but it was too late.

After when Richard was running away they shouted at Malaketa "ran behind man ia. Killem hem". Malaketa in response said me busam nao. Malaketa chased Richard but could not go on knowing that he had already stabbed him and instead I saw him stabbed a paw paw tree standing by. That’s all.

There are no "points of contention" noted against any part of this additional statement.

The appellant also spoke about the matter to police. As will have already been noticed, this interview is not mentioned in what we have termed the narrative account. From notes on the record of interview made by Mr Tigulu it is reasonable to infer that the appellant was taken through the record of the interview. Against the word "caution" appearing after the nature of the inquiry is stated is the phrase, "no proper explanations". The appellant was told that he would be given an opportunity to read this the record and was asked if he understood/the record stated that he said he understood. Mr Tigulu made the note, "said have reading problem with poor eye [semble, sight’]". The interview where sets out a question asking the appellant if he agreed to take part in the interview that was proposed and his answer "me agree? Counsel has made the note: "Told to just answer the questions". The crucial part of the record of interview is as follows –

Actually it was Clement and Richard who fought. I only came with the knife to make him frighten. When I attempted to stab him, the knife landed on Clement’s leg when he shut him. I tried to stab him the second time and so he jumped it and the knife landed on him. I don’t know where the knife landed but the knife landed on him.

Next to Q27 is the note, "Disagree. Said picked up knife". The last question asked is stated as, "Do you prepare to make any written errors which might appear in this statement?" to which the answer is said to be "No". Against this question and answer is written, "Disagree".

The ultimate position of the appellant on the various issues in the trial was not such as to leave his counsel with much to work with. There were certainly disagreements with certain aspects of the prosecution case. But, if the appellant accepted – as he appears to have – the major elements of the accounts given by the Crown witnesses, nothing was left of self-defence and very little indeed of intoxication as a significant qualifier of murderous intent.

The autopsy revealed that the deceased died as the result of a single stab would to the side of the chest, going to the middle of the chest, almost reaching the heart and punching the upper and lower lobes of the lung. There was no other signs of trauma to the face or legs. According to the doctor’s evidence, the wound was such that it could not have been caused by a struggle, as it was a clean single deep wound.

Rilen Sesi’s evidence, broadly speaking accorded with her statement with some added details. In summary, she said that Sisifiu confronted the deceased, that the appellant then came up and punched him, pulled out a knife and stabbed Richard who avoided it but it struck Sisifiu’s leg. She said that Richard could not escape because he was chased by the accused. She said that Richard was attacked for the second time by the four accused and that the appellant stabbed him with the same knife he had earlier used. Rilen pointed to a spot under her right arm to indicate where the appellant had stabbed the deceased. This accorded with the medical evidence.

In cross examination Mr Tigulu put it to Rilen in various ways that the deceased wanted to fight ("No"). and asked about holding a stone to throw at the appellant ("No"). He asked if Rilen had run away ("No"). He put it to her that the men had came to ask for compensation "but things went wrong and then the fight occurred, which the witness in effect denied. In cross-examination by counsel for the other accused Rilen repeated her evidence that, although all the accused had knives, it was the appellant who stabbed the deceased.

It appears to us that Mr Tigulu understood his instructions to be that the appellant had indeed stabbed at the deceased at least twice, once stabbing the co-accused Sisifiu in the leg by accident and once inflicting the lethal blow. There was no point in questioning Rilen about intoxication. She had not said anything about it, one way or another. Why would counsel risk a denial? We reject the submission that Mr Tigulu’s cross-examination was inadequate or incompetent. It may have been brief, but this is very much a matter for counsel’s judgment. A long cross-examination frequently has the effect of re-inforcing a witness’ credibility. Furthermore, there were three other counsel to cross-examine upon disputed matters.

Brian Aluga gave evidence, also broadly speaking along the lines of his statement. Briefly, he said that the four accused all held the deceased, though when this happened is not clear. He said that the appellant punched the deceased on the left side of his face, took out his knife and attacked the deceased with it. He said the blow was directed downwards, that the deceased then ran away, followed by Sisifiu and the appellant. He said that the other two accused blocked his path, that all of them had knives, that Redley moved in with his small knife, the deceased turned back and was confronted by the appellant who stabbed him in the right armpit. He said that the men had not come for compensation but to kill the deceased. Mr Tigulu cross-examined on the compensation issue. He put it to Aluga that the deceased was in an aggressive mood and wanted to fight. He denied that the deceased threw any stones. The theme that the men had only come to seek compensation was taken up by other counsel. It is fair to say, we think, that – so far as we can judge from the transcript – the evidence of the witness was not effectively weakened by this attack on his reliability. To the contrary, the elaboration that this cross-examination brought about, as so often happens, added a significant degree of cogency to his evidence.

The last eye-witness to give evidence was Leden Aluta, the young nephew of the deceased. He said that he was in the house when Sisifiu and the other men arrived, that Sisifiu challenged his uncle to fight, that his uncle tried to negotiate, that Sisifiu held him "in a hugging manner" and Daefa also held him. He said that at this point the appellant stabbed at the deceased but missed him and hit Sisifiu instead. He said that the deceased then ran away, with the men following. Others, including Redley, blocked his path and, when turned back, the appellant stabbed him in the right side.

Mr Tigulu cross-examined Aluta as to when he came to the scene, about the response of the deceased to the demand for compensation and to suggest that, when Sisifiu first spoke to the deceased, the appellant was some distance away and arrived after Sisifiu. It is true he did not cross-examine to suggest self-defence. But evident – as his instructions demonstrated and the evidence thus far had shown – self-defence was not really open. Further cross-examination was likely merely to reinforce the evidence of the other witnesses in this regard. It is worth noting, we think, that counsel for the other accused did not cross-examine any witness to suggest that the deceased had acted aggressively or in any way to raise the possibility that he was attacked in self-defence. The attempts of Mr. Tigulu to do so were all the more markedly unsuccessful because of this approach. It was clear from early in the trial that the other accused did not suggest they or the appellant may have acted in self-defence.

All witnesses stated that after the fatal blow had been inflicted and the deceased ran away, the appellant walked towards him, and stabbed the trunk of a pawpaw tree, expressing some words relating to clan loyalty or membership. A photograph of the cut was exhibited.

This was a matter of marginal significance and no-one cross-examined about it. It appears from a marginal note on one of the witness statements that the appellant denied saying the words attributed to him. We do not think that the fact that the witnesses were not cross-examined on this matter has any significance. The choice of what issues to take up in cross-examination is very much a matter of judgment in the light of the perceived issues, the atmosphere of the trial and the character of the witnesses.

The officer who conducted the interview and noted the questions and answers was not cross-examined to suggest that there was no caution or that the record was inaccurate. There was a suggestion that the appellant might have mentioned compensation but no note made of it. This was denied. It is submitted that Mr. Tugulu should have objected to the admissibility of the record of interview. However, the only real issue, so far as the appellant was concerned, that arose out of the interview was the disputed answer that the knife was his. In light of the real issues in the trial, it being undisputed that the appellant had and used a knife, we can understand that defence counsel might well not wish to open up a significant forensic battle with the police which might well have ended with his client’s credibility being substantially destroyed. Where the appellant got the knife was not of real importance. Indeed, if the appellant indeed picked up the knife before or during the discussion between Sisifiu and the deceased that would strongly suggest that he intended an attack. Such questions, again, are very much a matter of fine judgment made as the trial unfolds. Merely because counsel does not fight every battle his or her client wishes does not at all suggest incompetence: indeed, sometimes it demonstrates the very opposite. Even if, in the result, it can be seen that counsel’s view was mistaken, that does not reflect on his or her competence. Hindsight is no fair test of competence in this context. But, at all events, we are far from persuaded that counsel’s decision not to object to the admission of the record of interview or as to its accuracy in relation to the knife was unwise, let alone that it was incompetent.

The appellant gave evidence. Before he did so, Mr. Tigulu opened briefly as follows –

"My client will be giving evidence as part of his evidence. We will not be calling any other witnesses. I will first call my client. The defence case basically is that he will plead absence of intention to kill."

It will be seen that this implies an acceptance that the appellant inflicted the fatal blow and that there was no defence of self-defence. So far as the first of these issues is concerned, it seems to us that this reflected acceptance of the inevitable, not only as appeared from the evidence but also from the appellant’s instructions, though his narrative account expressed ignorance as to who inflicted the fatal blow. The appellants instructions as to self defence were scarcely sufficient: he admitted being the aggressor; he held a knife and punched the deceased, which was the first physical blow struck. The only "attack" mentioned is somewhat ambiguous in that it appears that the sense in which it was used was that the deceased had challenged the appellant to use the knife. This could not give rise to self-defence if the knife were then used. At all events, this issue was cross-examined on by Mr Tigulu with distinctly unfavourable outcomes. The medical evidence mentioned above was decisive in disproving any suggestion of the lethal blow being struck in the course of a struggle and provided strong support for the accounts given by the eye witnesses. The narrative instructions make it clear that the stones were allegedly thrown by the deceased after his interaction with the appellant, that is to say after the fatal stab. They were thus immaterial to the question of self-defence. Even if thrown before the fatal blow, following the deceased to stab him could not give rise to self-defence. Thus, throwing of stones – even if it occurred – was immaterial.

So far as intoxication is concerned, of course that could only go to intention. Accordingly, by confining the real issue to intention, Mr Tigulu was not conceding, at that point in the trial, that his client was not so adversely affected by intoxication as to give rise to a reasonable doubt about his ability to form the requisite intention or, affected by alcohol, whether he might not have done so.

We do not think we are justified in inferring that the concessions of Mr Tigulu in his opening was contrary to his instructions.

It is now necessary to turn to the appellant’s evidence. That was to the following effect in chief –

I came to the market on 1 January to sell betel nut. In the early morning of that day I was still drinking, having celebrated New Year’s eve by drinking.

As I was coming to the main road I heard Daefa and his father (Sisifiu, the appellant’s brother) talking about sorting out compensation about some "swearing" committed by Richard (the deceased). Daefa and Sisifiu said we were to go to compensation, not for fighting "because there was nothing between us and that man." When we arrived at Sun Valley – where Richard lived – Sisifiu told us not to speak and went ahead to Richard’s house, saying he would sort out the compensation. He called for Richard, who came out. I could see there were only two women in the house. I couldn’t see any men there. The distance from the road is about 20 minutes or so.

This may be a mistaken note – at 20 minutes walking distance, it would have been almost impossible to make out any details at all – and later evidence suggests that it was 20 metres.

Sisifiu asked for his brother Richard. Then Richard came out, he asked about compensation for swearing, Richard said he didn’t want to give it. He denied "swearing". "He then caused fight that problem

Did anyone try to stop you?
Clement tried to stop him, but he forced himself, he wanted to kill too.

Could you fight with him too?
So I tried to defend myself. He held the bucket and tried to whip me with it. He then held two stones and threw them at me. There were two big stones which they used for motu.
Then he saw me with the knife and said you hit me with the knife.

He said for me to hit him with the knife. So there everything went wrong. We did not plan this.

So in your view who was wrong?
So that compensation caused everything went wrong because he said he did not swear, I will not give it. So for us to plan it and kill him – no."

The appellant said that Richard did not want to listen and there was no one there to sort out the matter for compensation as there were only two women there. Others may have been in their houses but not at that place.

The appellant repeated that Richard "struggled to fight me and whipped me with a bucket."

The appellant had been drinking beer each night from Christmas to New Year. The appellant may have drunk 2 to 3 cartons (over this period). He finished drinking at about 5am. on New Year’s day. The appellant did not have a knife with him and did not take a knife with him to Sun Valley. The prosecutor asked –

But your mind was clear?
Not very clear. I understood what I heard. I could understand what I saw.

You saw some women also?
That time I did not see any women. Because I was worried about Richard that he might attack me.

At first place I spoke to Richard. Yes, he was there under the house. I was out here and then spoke to him in the first place.

Look at photograph "A". Richard ran away from you and ran to the front of the building?
No. He first moved a bit further. He then held a bucket and whipped me.

From where you attacked him? He ran away from you and went to the front of the house downstairs?

He first moved to the place downstairs. I first held knife at my left side. I stabbed him and it missed him and hit Clement’s leg." The appellant said it was his left leg.

Then Richard Riley ran away from you?
Then he took three steps and held the bucket.

You stabbed him first, then he held bucket?
No. When I stabbed him and it missed him – he moved then and whipped me with the bucket.

I put it to you that Richard Riley did not whip you with anything?
No. He whipped me at that time. He moved to stones.

After you stabbed him he ran away to another place?
No. He ran to where the stones are. The place I stabbed him is at another place.

So he ran to another spot?
Yes. I stood where he whipped me. When he held two stones, then I moved to him. I did not follow him [when] he moved to another place. I watched him, I did not follow him. Behind that room he held two stones so I moved to him. I just held knife. When he threw stones at me, I missed him then he ran away. He ran away so I came back and stood there. Clement first stood at spot where my knife had cut his leg.

Witnesses said you moved to this spot.
I stabbed him two times. Clement did not hold any knife. First time I slapped him. Second time I missed. Third time hit him.

You chased him.
No. I did not follow him. I reached the pawpaw...I did not run after him [further].

Then –
You met someone at the pawpaw tree?
One boy. So I said what did you come for, I am already in trouble.

You went for compensation then fight happened?
From because he refused to pay compensation.

From the pawpaw you reached
When he fell down I did not see him. He ran fast and I did not see him anywhere [and I did not follow him].

"Richard said you cross for hem. William Malaketa turned around and slapped Richard. He slapped Richard so I stood between them and I said, wait we’ll solve this between us. Then when he slapped Richard, Richard moved to my left side. Then he said, if he wants to fight kill me with that knife." Clement denied holding the deceased or blocking his escape. He said he stood between the deceased and the appellant.

"Then William Malaketa stabbed knife at Richard. Knife did not reach him because I pulled Richard to my left side and lifted William Malaketa’s hand".

He added that the knife struck his hand and his left thigh. He said that the deceased then fled, followed by the appellant. He saw the deceased hold a bucket and swing it at the appellant. He missed him then "William Malaketa came around behind Richard. He came to the left side of Richard and turned to the right and stabbed Richard". Sisifiu said that, when the appellant stabbed the deceased he (the deceased) moved away and picked up two stones; this was after the appellant had stabbed him. The deceased moved away. He saw the appellant near a pawpaw tree. Someone asked the appellant for a fight. The appellant said what so you want, do you want another problem, then he stabbed the pawpaw and moved away.

Mr Tigulu did not cross-examine Sisifiu to suggest his account was wrong. It was not incumbent upon him to do so. His client had already given evidence. It may well be that he formed the judgment that, in light of what his client had already said in evidence, together with all the other evidence in the case, no useful purpose would be served. There was a great deal to commend this view. It did not really matter when the deceased had thrown any stones. The appellant was plainly the aggressor. He cannot call in aid the attempts by his victim to defend himself with a bucket or with stones. Mr Tigulu adduced from Sisifiu that the deceased had not been impeded in his escape by others, that he had not seen appellant with a knife as he came with them and they had gone for compensation, not to kill the deceased.

The next witness called by Sisifiu was Paul Goreta. His evidence was that on the morning of the incident, he and Fa’alu were going to his garden to harvest some cabbage. On the way they came to Sun Valley where they saw Clement talking loudly at Riley Sesi’s house. He just stood next to the house. He saw the appellant stab Clement with the knife, Clement having attempted to deflect the blow aimed at the deceased.. He then left the scene. He was cross-examined by the prosecutor, amongst other things saying that it looked as though Clement and the appellant were drunk. He said they were talking loudly, their "Behaviour and speech was not straight." He said that Rilen Sesi had said that that red money was available for the payment of compensation, that he told the men this but they did not listen and continued to argue with the deceased "because they were too drunk and so did not hear us." In answer to questions from the Chief Justice, Goreta said that he saw nothing that suggested the deceased wanted to fight. He said he "just stood there." It should be noted that he also said he left after Sisifiu had been struck and, hence, before the fatal blow.

Abraham Fa’alu was also called by Sisifiu. His evidence was much the same as Goreta’s but he did not see Sisifiu stabbed. He said that he saw the appellant chasing the deceased after seeing blood on Sisifiu. He saw the appellant with a knife. He left before he saw what then happened.

In cross-examination by the prosecutor he said he saw Clement, Peter and the appellant at Rilen Sesi’s house. He said Clement had asked for Richard. There was an argument. He initially denied that Rilen Sesi had asked them not to fight, that compensation would be paid but, on being reminded of his police statement, agreed that this had happened. He said in chief that there were may be 20 people there but he did not count them. He said he didn’t know if the fight was long or quick. He was asked –

In further cross-examination he said they – we think meaning the appellant and Sisifiu – were drunk. He was then asked –

Were you there too when William Malaketa used his knife and stabbed Richard under that house?
Uummm?

That knife hit Richard’s ribs? When William Malaketa swing his knife, it hit Richards ribs?
(Witness hesitate then eventually answers) Yes.

You only saw the knife? Then after stabbing you saw Clement Sisifiu and his son Peter Daefu leaving Rilen Sesi’s place? Do you know Clement Sisifiu well?
Yes.

This knife that William Malaketa had was with him all the time? It had a black handle?
I don’t know.

Fa’alu later said in cross-examination that he could not recognize who held the knife, that he did not see when the knife hit the deceased, nor who had stabbed him. He had heard the others say that the appellant had killed the deceased.

It seems clear to us that Fa’alu’s evidence was not, as a practical matter, adverse to the appellant. Nor does it seem that he was cross-examined on his statement to adduce adverse material.

Peter Daefa also gave evidence. He said that Redley’s house was about 20 metres from Rilen Sesi’s house and that Clement went to Rilen’s house first and was followed a minute later by the appellant. He said about two minutes later he saw the appellant slap the deceased that his father said, "wait, let’s straighten this matter" and stood between the two men. His father pushed the deceased and then the appellant stabbed at the deceased but hit Clement instead. Daefa said he went up to his father to help and get him to go. The deceased and he appellant moved to the corner of he house. Daefa said he did not see what they did. They were out of sight. He held his father’s hand and urged him to go.

In cross-examination by the prosecutor Daefa denied being involved in fighting the deceased or that anyone else had done so.

Redley Clement Sisifiu’s defence was alibi. His evidence is not presently relevant. As has been noted, he was acquitted by the Chief Justice. A witness Loveline Mamuri was called in Redley’s case. The prosecutor sought to cross-examine her on her police statement. Objection was taken on the ground that it had not been disclosed to the defence. In the course of discussion, counsel referred to the statements of Fa’au and Goreta as also not having been disclosed. The prosecutor said that their statements had not been asked for though it was suspected that they would have been requested. That ended the discussion. It is worth noting that the fact that Fa;alu had made a statement was disclosed during his cross-examination. It could, of course, been immediately called for and inspected at that time. No call was made. Such a call could also have been made at the point at which the matter arose during the cross-examination of Loveline Mamuri. Again, no call was made.

Leaving aside the significance of the non-disclosure of the statements to counsel for the other accused, the question is whether any material miscarriage occurred so far as the appellant was concerned. There is no doubt that the prosecution has a duty to disclose the statements of material witnesses. In R v Brown [1997] 3 A;; ER769 Lord Hope of Craighead said (at 773 ff) –

"The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context...the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence..."

So far as disclosure of material that that relates to the credibility of defence witnesses is concerned, Lord Hope said (at 777-778) –

"...[The] principle of fairness lies at the heart of all the rules of the common law about the disclosure of material by the prosecutor. But that principle has to be seen in the context of the public interest in the detection and punishment of crime. A defendant is entitled to a fair trial, but fairness does not require that witnesses should be immune from challenge as to their credibility. Nor does it require that he be provided with assistance from the Crown in the investigation of the defence case or the selection, on grounds of credibility, of the defence witnesses...To repeat the words of Diplock LJ in Dallison v Caffery [1964] 2 All ER 610 at 622, [1965]1Q6 348 at 375, the duty of the prosecutor is to prosecute, not to defend. The important developments in the prosecutor’s duty of disclosure since he wrote these words have not altered the essential point that there is a difference between the functions of the prosecutor and those of the defence. The prosecutor’s duty is to prosecute the case fairly and openly in the public interest. It is not part of his duty to conduct the case for the defence.

The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses. The adversarial system under which trials in this country are conducted applied to the examination of witnesses in support of the defence case in the same way as it does to the examination of the witnesses for the Crown. No witness enters the witness box with a certificate which guarantees his credibility. Every witness can be cross-examined upon the veracity or reliability of his evidence. Cross-examination which is directed only to credibility may lose much of its force if the line is disclosed in advance. This weakens the opportunity for the assessment of credibility by...[the tribunal of fact]. To insist on such a disclosure would, sooner or later undermine the process of the trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done."

In applying these statements of principle, which in our view, state the law of the Solomon Islands, it necessary to bear in mind that Goreta and Fa’alu were not witnesses called or relied on by the appellant. Counsel for the appellant was not placed in the situation where consideration of their credibility was material unless, of course, they happened to give evidence that was adverse to the appellant. By the time they came to the witness box their evidence was not in issue so far as the appellant’s case was concerned.

Regrettably, the police statements of Goreta and Fa’alu were mislaid after the trial. However, judging by the evidence they gave, both in chief and in cross-examination, there is no reason to think either that they may have been able to assist the defence or weaken the prosecution case, with the possible exception that Fa’alu may have been able to give evidence of the appellant’s possible intoxication. This was material capable of assisting the defence and, accordingly, the statement should have been disclosed. Nevertheless, the question whether the failure to disclose the statement led to a miscarriage must depend on the facts of each case. Here, the prosecutor elicited Fa’alu’s view that the appellant was drunk, the basis for this opinion being that he had not heard Rilen Sesi offering to pay compensation. As to what the appellant did or did not hear, the evidence was mere supposition. It may be taken that he was explaining why the appellant did not respond to Rilen’s offer. This issue was a fraught one for the appellant for obvious reasons. It was scarcely surprising that Mr Tigulu did not question him about it. The appellant himself did not suggest that his hearing was adversely affected at any time, or that he could not understand what was being said, especially by Sisifiu and the deceased. What seems clear is that, even if the appellant was to some degree affected by liquor, there was nothing in his own evidence that gave support to the notion that he did not know full well what he was doing with the knife when he attacked the deceased. It is important to understand that intoxication is not, in any sense, a defence. It is merely one of the circumstances relevant to determining whether an accused had the requisite intention (in this case) for murder. A drunken intention to kill or cause grievous bodily harm is nonetheless an intention sufficient to prove murder. In this case, in every practical forensic sense, the appellant’s own evidence had disposed of intoxication as a real issue both as to the quantity he had drunk and in his account of what happened.

It can be argued that Mr Tigulu, had he been armed with Fa’alu’s statement, may have been able to elicit Fa’alu’s evidence about the appellant’s apparent drunkenness. But it was, in the result, adduced by the prosecutor, no doubt in a spirit of fairness. There is no evidence that would permit the inference that Fa’alu had said anything more about the appellant’s intoxication than the prosecutor adduced. But at all events, as we have said, intoxication of the appellant was no longer a real issue by this stage of the trial.

It is possible to hypothesize that Mr Tigulu should have called for the statements, ascertained what was in them and then may have been able to cross-examine the witnesses to adduce favourable evidence. But what could that have been? His client’s own evidence had established that, shortly before or perhaps during the discussion between Sisifiu and the deceased in which the latter had denied wrong doing and refused to pay compensation, he had picked up a knife, that he had slapped the deceased’s face, attempted to stab him but stabbed Sisifiu instead, that when the deceased had fled, he followed him and persisted in the attack even when the deceased had attempted to defend himself, on the appellant’s account, with a bucket and then stones. No doubt questions could have been asked but whether they should have and whether they would have assisted the accused are entirely different questions. It is impossible to demonstrate a miscarriage of justice upon such speculative lines of reasoning.

In R v Birks (1990) 19 NSWLR 677 at 685, the significance of counsel’s competence was discussed by Greeson C J as follows (at 685) –

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of the trial, perhaps as a result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognized as involving, or causing, a miscarriage of justice. It is impossible and undesirable to attempt to define such cases with precision. When they arise they will attract appellate intervention."

Counsel for the appellant submits that Mr Tigulu was "flagrantly incompetent" for failing to have attempted to obtain further instructions than those contained in the narrative account and expressed in the marginal comments on the statements of Crown witnesses. He points to the issues of self defence, provocation, intoxication, intention to kill and voluntariness of the police interview. A major difficulty with this contention is that there is no evidence as to the instructions the appellant would have given had he been asked about them. The appellant has made an affidavit as to giving instructions, as we have pointed out but he has not referred to these issues. At all events, we are unpersuaded that Mr Tigulu did not appropriately consider the issues to which counsel here has pointed but, at all events, it is not possible for the appellant to demonstrate any miscarriage where no attempt has been made to adduce material from which it might be inferred that the proposed enquiries of him would have elicited matters that might have assisted him. This is a matter peculiarly within the knowledge of the appellant. By way of example, it is submitted that Mr Tigulu should have been asked what fears he had, why he became involved in the fight, and why he stabbed the deceased. But upon what basis can it be inferred that his answers to those questions might have supported rather than destroyed any argument favouring self-defence? It follows that, whatever might have been the theoretical desirability of Mr Tigulu pursuing these issues to seek further and more detailed instructions, it cannot be concluded that any miscarriage was occasioned by his not doing so.

Mr Tigulu is criticised for having identified the real issue as whether the appellant intended to kill the deceased. It is submitted that this shows that he was unaware of the other intentions by which murder might be proved, namely the intention to cause grievous bodily harm, and reckless indifference to life. We are not persuaded that counsel would be likely to make such an elementary error. Section 202 of the Penal Code provides –

"Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the act or omission by which death is caused, and may exist where that act is unpremeditated –

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

The prosecutor in his final submissions to the Chief Justice referred to these provisions and, in particular to s202(b), submitting that the appellant could not have failed to realize that the stabbing of the deceased under the armpit would cause grievous bodily harm. The brief note made of Mr. Tigulu’s submissions show that he referred to s.202. We are not persuaded that the mere fact that the Chief Justice’s brief note of Mr Tigulu’s opening did not record more than a reference to the intention to kill demonstrates that Mr Tigulu was not relying on and aware of s200 of the Penal Code. It appears to us that, when Mr. Tigulu referred to the intention to kill, he was using that as a short-cut reference to the relevant mental element necessary to prove murder and we think he was so understood by the Chief Justice.

Even if we are mistaken about this, the Chief Justice considered whether the prosecution had proved beyond reasonable doubt any of the necessary intentions. His Lordship concluded that the appellant intended to kill or cause grievous bodily harm and that, at all events accepting (as was inevitable) that the fatal thrust with the knife was intentional the appellant well knew that this would probably cause grievous bodily harm, a conclusion that was also inevitable.

The first ground of appeal was directed to encapsulating the other claimed errors and requires no additional comment. The second ground of appeal, as explained on the hearing of the appeal by counsel for the appellant was not that the Chief Justice had erred in the way he dealt with the differences between the version of events given by the appellant and the cross-examination of the Crown Witnesses but that the failures to cross-examination demonstrated incompetence of counsel amounting to a miscarriage of justice. For the reasons already given, we do not accept this contention. The mere fact that the Chief Justice, as he was entitled to, considered that the apparent differences between the line taken in cross-examination and the appellant’s evidence and the difference between his evidence about the knife and what it was alleged he told the police, did not assist the appellant’s credibility does not mean that counsel’s approach to these matters was mistaken, let alone that it was incompetent. Counsel made such judgments in the course of running a trial and though, in the result, they turned out to be disadvantageous, this is no fair criticism of counsel’s forensic decisions. Aside from anything else, the conclusion that, had he taken the suggested line, his client would have been better off is highly speculative and, in our view, very doubtful.

The fourth ground of appeal contended that the Chief Justice erred in not directing himself as to the relevance of intoxication to the relevant mental state necessary to be proved for murder. The Chief Justice mentioned the evidence of Fa’alu that the appellant was too drunk to hear Rilen Sesi’s request to sort the matter out peacefully. However, once the Chief Justice accepted the accounts of the prosecution witnesses as to what occurred, his Lordship’s conclusion that the appellant intended to kill or cause grievous bodily harm is inevitable.

The third ground of appeal as to self-defence also should be rejected. It was not reasonably open on the appellant’s own evidence. As it happened the learned Chief Justice accepted the evidence of the prosecution witnesses as to the sequence of events. His Lordship was entitled to do so. There is no merit in this ground.

The sixth ground of appeal concerns the non-disclosure of the statements of Goreta and Fa’alu. We have sufficiently discussed above the significance of this omission. In our view it cannot be shown that the appellant was prejudiced or that there was a real risk that he was prejudiced by this non-disclosure. His case is significantly different from the cases of Sisifiu and Daefa, whose convictions were quashed on this ground. Neither of them had struck the deceased, let alone used a knife to injure him. The extent to which they were present encouraging the appellant was matter of real controversy and uncertainty. The question whether Sisifiu had deflected the below aimed at him by the appellant was crucial since, if he had done so, this was inconsistent with any supposed intention that he might have had to kill the deceased. Both Goreta and Fa’alu were witnesses to that event. So far as the appellant was concerned, however, in substance their evidence was that they had not seen the fatal blow. This Court held that, in respect of Sisifiu and Daefa, the failure to disclose their statements gave the prosecution an unfair advantage and gave rise to the real possibility that a substantial miscarriage of justice occurred. In the appellant’s case, however, his own account was fatal to any defence that he might have had, even if the Chief Justice had not accepted the evidence of the Crown witnesses. We are satisfied that there was no real possibility that, so far as the appellant is concerned, the non-disclosure gave rise to a miscarriage of justice. Accordingly, we would reject this ground of appeal also.

We think it appropriate to observe that, although the conduct of Mr Tigulu was impugned, he has not made an affidavit as to the matters for which he was criticised. We were told that the neither the defence nor prosecution sought a response from him about the criticisms. In the usual course, it is for the Crown, where counsel below is criticised for his or her conduct of the trial, to obtain an affidavit from counsel dealing with and answering, if possible, those criticisms. Of course, counsel is not obliged to provide an affidavit but usually would be expected to do so by way of assisting the Court to properly deal with the issues in the appeal. In the result, we have been able to dispose of the appeal without needing such an affidavit. However, we wish to bring to the attention of the Crown, should a ground of alleged incompetence of trial counsel be raised again, the desirability of obtaining an affidavit from the counsel concerned.

Court of Appeal of Solomon Islands

Malaketa v Regina [2007] SBCA 5; CA-CRAC 35 of 2005 (30 March 2007)