Pese v Regina [2008] SBCA 10; CA-CRAC 4 of 2008 (18 July 2008)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua J)
COURT FILE NUMBER:	Criminal Appeal Case No. 4 of 2008 (On Appeal from High Court Criminal Case No. 594 of 2005)
DATE OF HEARING:	Monday 14 July 2008
DATE OF JUDGMENT:	Friday 18th July 2008
THE COURT:	Williams JA, Goldsbrough JA, Adams JA
PARTIES:	Mathias Pese -V- Regina
ADVOCATES:
Appellant:	Paulsen & Wallwork
Respondent:	Christensen
KEY WORDS:	Young offenders – age at time of offence, age at time of conviction – Juvenile Offenders Act
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	Against conviction dismissed Against sentence allowed
PAGES:	1 - 8

JUDGMENT OF THE COURT

1. This is an appeal against conviction and sentence. The Appellant was convicted on 2 July 2007 following trial for offences of murder and abduction committed on 28 April 2003 in Nduidui Village, Weathercoast, Guadalcanal Province. The victim was Palu Buake. He was sentenced on 7 February 2008 to life imprisonment for the murder and to seven years imprisonment for the abduction.
   
2. The grounds of appeal against conviction are that the verdict is unreasonable and cannot be supported by the evidence and that the learned trial judge failed to properly consider and apply the onus and standard of proof. An additional ground of appeal, introduced during this hearing, is that trial counsel neglected to seek a stay of the proceedings, and in the alternative the learned judge failed to consider a stay of the proceedings, as a result of which a miscarriage of justice ensued.
   
3. The circumstances surrounding these offences occurred in April 2003 at a time when the Appellant was 15 years and 8 months and 10 days old. At time of arrest he was 18 years and 8 days old and at time of conviction 19 years 10 months and 17 days old. The victim was abducted by a group of people including the Appellant from Nduidui Village, taken to a beach where he was beaten to death with sticks.
   
4. The first two grounds of appeal essentially overlap. On the basis of the inconsistency of evidence of the one eye witness, it is said that the judge should not have relied upon that evidence alone to convict the Appellant. Within submissions there are cited seven incidents of inconsistency between evidence at trial and previous statements made in the matter. Counsel for the Appellant conceded that these were the only incidents of inconsistency which formed the basis of the appeal. For that reason, this court has not considered the whole transcript of the trial but relies upon the identification by counsel of the incidents in her submissions.
   
5. The witness was Ephraim Rongomilepo. Consideration of his evidence begins at page 3 of the trial judgment. Further consideration relating to the inconsistency between evidence and statements begins at page 12 of the judgment. Having set out what was said to be inconsistent, in his judgment the trial judge disposed of the individual criticisms of the evidence in various ways. He found some evidence not to be inconsistent with previous statements. He found some inconsistency on matters not necessary to be proved and found inconsistency which he attributed to memory loss. Taken as a whole, the judge found, the submission that the evidence was unreliable and untruthful as a result of the inconsistencies was not made out.
   
6. It is without doubt that the learned trial judge has advantage over any judge of appeal in that he had the opportunity to observe the witness, take note of the length of time taken to respond to any particular question and to generally assess the evidence that he heard both in Solomon Island Pidgin and interpreted into English.
   
7. Having ourselves examined the incidents referred to this court by counsel for the appellant we are satisfied that the learned trial judge applied his mind properly to the questions raised within the trial and did not overlook any aspect that fell to be addressed in his considerations. We do not feel that any benefit could be gained from examining each separate inconsistent statement in detail within this judgment but it suffices to say that the question of inconsistency between earlier statements and evidence was thoroughly assessed at the time of trial and there is no reason apparent from the judgment to suggest the learned trial judge did anything other than undertake a proper and considered view of the evidence before him. Indeed from his judgment it is clear the learned trial judge painstakingly detailed each incident and made individual determinations of each incident, suggesting it was a most thorough analysis of the evidence.
   
8. A more general point in the submissions for the appellant raises the question of the reliability of evidence after such a long period of time between the allegations arising and the trial. This, in our view, is no more than restating that careful consideration of the evidence is necessary in such circumstances, and as we have found above, this is precisely the careful consideration that the evidence received from the learned trial judge.
   
9. The same considerations apply to the onus and standard of proof. We note from the judgment that the learned trial judge was mindful of the responsibility of the Crown, because he says as much at page 14 of the judgment when reminding himself, correctly, of the burden and standard.
   
10. There is reference in submissions to the fact that there was no forensic evidence of cause of death presented to the court. This is indeed correct, but there is evidence from the one witness that the deceased was beaten to death before his eyes and later buried. There is no substantial point that arises as a result of the lack of forensic evidence in such circumstances. Whilst one could find that the death occurred as a result of the beating, which is the most likely interpretation given the evidence before the court, it is not necessary to have evidence before the court that any particular blow or injury caused was the one which resulted in the death.
    
11. In the circumstances the appeal against conviction is dismissed.
    
12. Turing to the newly introduced ground of stay, we note that this is premised in particular on the effect of the delay between offence and trial which delay resulted in the appellant turning 18 prior to trial, conviction and sentence. Because of his age at the time of the offence and at the time of conviction the appellant was removed from the effect, in the view of the trial judge, of the Juvenile Offenders Act [Cap 14]. Should it be the case that the ground is premised on anything other than this, it would not, in our view be proper for this to be raised for the first time on appeal, nor, again in our view, would it be proper to proceed to determine the matter without evidence as to whether the delay was reasonable in the circumstances. But since the ground, as we were told by counsel when seeking leave to introduce it at this stage of the proceedings relates to the effect of delay on the applicability of the Juvenile Offenders Act we feel that it can be properly raised within this appeal, but does not require further consideration given our view of section 13 of the Juvenile Offenders Act.
    
13. That section provides:-
    

"Notwithstanding anything in this Act to the contrary, when a child or young person is convicted of a grave crime, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence is passed the child or young person shall, during that period, notwithstanding anything in the provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may in his discretion direct, and whilst so detained shall be deemed to be in legal custody."

14. "Grave crime", it is conceded includes the offence of murder. The effect of this section was considered by this court in Criminal Appeal Case 19 of 2006 wherein this court determined that the mandatory sentence of life imprisonment for murder in the case of an offender under the age of eighteen years both at the date of conviction and sentence was displaced by section 13 and that such an offender could be detained under the provisions of the section.
    
15. This appellant does not fall within the category of persons who may benefit from the earlier judgment of this court as he was 18 at the time of his trial, conviction and sentence.
    
16. It is submitted in this appeal that the provision of section 13 should apply to this appellant even though it appeared to the learned trial judge that the section did not apply. In giving his reasons, on sentence, the learned judge said:-
    

"My opinion is that the material age of an offender for deciding whether the provisions of section 13 applies to him is his age at the date of conviction and not his age at the date of the commission of the offence. My reasons for reaching this conclusion are: first, it because of the use of the expression offender in the section. That is to say, that a young person is merely referred to as an offender for purposes of sentence, after his conviction, and second, because the language of the section ties the class and age of the offender to his conviction."

17. Whilst it is clear that the section itself is open to such an interpretation as the learned judge found, we are respectfully of the view that this is not the only interpretation that may be applied. The adult now standing before the court was a young person when the offence was committed. This may be stated also as the offender was at the time of his offence a young person.
    
18. Support for this alternate interpretation can be found in the notion that were it so abundantly apparent that this was the intention of the legislature, the question properly could not have been raised and answered at trial. That position may have been achieved by the legislator choosing a different form of words within the section as, for example, "at the time of conviction" or "at the time of sentence" or "at the time of the offence".
    
19. Further support can be found in the words of the Chief Justice in R v K [2006] SBHC 53 at paragraph three of his judgment when he said:-
    

‘This court determined that at the time of commission of the crime of murder, you were only 14½ years old. That took you out of the range of a mandatory life sentence though the maximum sentence which the court could still impose is one of life imprisonment."

20. It was conceded by counsel for the Respondent that if this court found there to be ambiguity in the section, that the Appellant should benefit from the most favourable interpretation of the section, given the potential consequences for the offender and the beneficial character of the section. That rule of statutory interpretation is well established and needs no further explanation. It is apparent in the judgment of the Privy Council on Eaton Baker & Anor v The Queen [1975] A. C. 774. Quoting from that same case:-
    

"If the date of conviction was the relevant date for ascertaining liability . . . . section 29 . . would operate capriciously because any delay in bringing the accused to trial might subject the accused to the death penalty merely by effluxion of time." (at 778)

21. Whilst their Lordships were dealing with different legislation, we are of the view that the capricious effect so described would result in this jurisdiction given the terms of the section as interpreted by the learned trial judge. That, in our view, cannot be the correct position.
    
22. Accepting as we do that the legislation is capable of more than one meaning and acknowledging in those circumstances that the appellant should benefit from the most favourable interpretation requires that the mandatory life sentence should be quashed and the matter referred back to the learned trial judge for sentencing under section 13 of the Juvenile Offenders Act.
    
23. In determining the appropriate sentence we have no doubt, given the new circumstances, that if it become appropriate the learned judge will take into account any period spent by the offender in custody prior to trial and sentence. Little turned on the point at the earlier hearing given the imposition of a life sentence but the issue may have greater significance on other circumstances. As this court has previously said, credit in some form or other should be given for pre-trial periods in custody, whether by ordering that a sentence should commenced from the date of pre trial custody, or, in cases where the pre-trial custody exceeds twelve months, a reduction in the total sentence reflecting the pre-trial detention period and a further amount reflecting the fact that pre-trial detention periods do not attract the one third reduction for good behaviour if that period is not otherwise capable of being taken into account.
    
24. The decision of this court is to dismiss the appeal against conviction, and to allow the appeal against sentence and to remit the whole of the sentence, both the murder and the abduction back to the trial judge for sentencing to take place afresh.
    

Williams JA
Vice President

Goldsbrough JA
Member

Adams JA
Member