Kwaimani v Regina [2009] SBCA 8; CA-CRAC 12 of 2008 (26 March 2009)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Cameron J)
COURT FILE NUMBER:	Criminal Appeal Case No. 12 of 2008 (On Appeal from High Court Criminal Case No. 355 of 2004)
DATE OF HEARING:	25 March 2009
DATE OF JUDGMENT:	26 March 2009
THE COURT:	Goldsbrough P Williams JA Hansen JA
PARTIES:	Lemuel Kwaimani Appellant -v- Regina Respondent
ADVOCATES: Appellant: Respondent:	K. Anderson R. Barry
KEY WORDS:	Criminal law – Judges’ Rules – strong evidence – whether conviction unsafe.
EXTEMPORE / RESERVED:	Reserved
ALLOWED / DISMISSED:	Allowed
PAGES:	1 - 11

JUDGMENT OF THE COURT

The appellant was convicted after a trial of doing grievous bodily harm and sentenced to 4 years imprisonment. He was acquitted of attempted murder.

He has appealed against conviction on two grounds:-

(1) The learned trial judge erred by admitting the appellant’s witness statement dated 8 January 2004 as evidence.

(2) A conviction pursuant to section 22 of the Penal Code is not supported by the weight of the evidence.

He also appeals against the sentence on grounds that the trial judge erred in failing to take into account the mitigating factor of delay and that the sentence was manifestly excessive.

On 10 May 2000 Moses Garu was viciously attacked by three men none of whom has been convicted of an offence relating to the attack. The prosecution case was that the appellant drove the three men to and from the place where the assault took place in his car; so much was not in dispute.

Witnesses gave police the registration number of the vehicle they saw leave the scene with the attackers as passengers. That led police to the appellant and they took a witness statement from him on 17 November 2003, some three and a half years after the incident. The appellant was not cautioned and it is accepted that he was then a witness and not a suspect.

In broad terms in that statement the appellant said he was driving his taxi in the Kaibia area when he was stopped by three men he did not know and who asked to be driven to Chinatown. On arrival the three got out of the car and directed the appellant to wait. At that time he did not see any weapons. A short time later the three men came out of the DBSI bank, and he saw they were carrying blood stained weapons. The men asked to be driven fast to where they had been picked up. The appellant did so. On hearing later a man had been attacked at the bank he did not report to the police because he was scared.

That statement was taken by Sergeant Fox. Then on 5 January 2004 Fox took a statement from Andrew Nuimalefo which named the three attackers and also implicated the appellant. That statement placed the appellant at the MEF Lion camp along with the three attackers. In effect the statement asserted that there was a conversation between Rasta and Fefele about killing a Guadalcanal man, and Rasta then directed Fefele and two others to go and do that. The statement asserted that the direction given by Rasta was that the appellant should go with the other three in his vehicle. The statement did not assert the men were visibly carrying arms.

Subsequently the four returned to the camp in the taxi. Fefele was then carrying a small axe and said they had killed a man.

Fox then further interviewed the appellant on 8 January 2004. In his evidence on the voir dire Fox said he "wanted to review his first statement and some inconsistencies in relation to that first statement". In his evidence he referred to "inconsistencies" on several occasions and also said he told the appellant "I believe there may have been more to the matter." Those statements clearly and only were based on a consideration of what was in the statement of Nuimalefo. Yet Fox maintained the appellant was not a suspect, but only a witness. Hence no caution was given before the statement of 8 January 2004.

In the statement of 8 January 2004 the appellant admitted that on the morning in question he went to the MEF camp looking for a wantok. He then approached a group standing around a barbecue. Subsequently he was approached by Fefele who asked that he and others be driven to the DBSI at Chinatown. He added to his previous statement that when the three men came out of the bank he saw two had bush knives and the third a small axe. In the taxi on the way back and again at the camp he heard the men saying, they have killed a man. He maintained his earlier statement omitted detail because he was scared.

On the voir dire counsel for the appellant contended that the appellant should have been cautioned and as he wasn’t the statement should not be admitted in evidence.

The voir dire was also concerned with the admissibility of statements by the accused Ila and Kiki. The trial judge concluded that each of those two was a suspect and as no caution was given their statements were excluded. Significantly the only evidence on which Kiki was regarded as a suspect was the statement of Nuimalefo which effectively named Kiki as one of the persons who got into the appellant’s vehicle.

The trial judge correctly found that the only relevant further evidence Fox had subsequent to the appellant’s first statement was the statement of Nuimalefo. He went on to find:

"I accept Sergeant Fox was reasonably entitled as at 8 January 2004, to hold the view that Mr. Kwaimani was still only a witness in the matter. At that stage police were not in possession of any strong evidence upon which they could have charged Mr. Kwaimani. In placing Mr. Kwaimani at the MEF camp Andrew Niumalefo’s statement does not say or necessarily suggest that Mr. Kwaimani was standing in a position where he must have overheard talk of killing a man in Chinatown."

The reference to "strong evidence" was to the Judges’ Rules in the Solomon Islands relating to the taking of statements by police officers. In broad terms those Rules provide that a witness becomes a suspect when there is "strong evidence that a person has committed an offence." The phrase is said to mean "strong evidence that could prove before a court that the person is guilty."

Because the trial judge considered the police did not have strong evidence which would prove the appellant guilty he held the appellant was still only a witness as at 8 January and so no caution was required. Hence the statement of 8 January was admitted into evidence.

The first ground of appeal attacked that ruling. On the appellant’s behalf it was submitted he was at the material time a suspect and as he was not cautioned the statement should not have been admitted. Counsel for the respondent argued that Fox was entitled to regard the appellant as only a witness as at 8 January and that the learned trial judge was correct in his ruling.

The test whether a person is a witness or suspect must be an objective one. The subjective opinion of the investigating police officer can never be conclusive. The over-riding consideration must be, as stated in the preamble to the Judges’ Rules: "Court want to be fair to Police Officers who have a hard job to do in bringing cases to court but also to be fair to persons who are suspected and accused of crimes." As is also said there: "If the interview is not fair because these Rules have not been kept or some other reason the Court may refuse to hear evidence of what a person said."

There was a clear admission in the statement of 17 November 2003 that the appellant drove the three attackers to and from the scene of the crime. Only some knowledge on his part would be required in order to make him a party pursuant to section 21(b) of the Penal Code. Prima facie that missing evidence was supplied by Nuimalefo’s statement placing the appellant at the MEF camp and acting under direction from Rasta in driving off with the three attackers. Fox regarded Nuimalefo as a credible witness of sufficient standing to justify charging Kiki, and in consequence he must have regarded him as a credible witness implicating the appellant.

Looked at objectively there was a prima facie case implicating the appellant pursuant to section 21(b) of the Penal Code in the attack on the victim. In the circumstances that amounted to "strong evidence" for purposes of the Judges’ Rules.

It follows that the appellant was a suspect when interviewed on 8 January 2004 and he should have been cautioned. As he was not, the statement should not have been admitted into evidence.

It is now necessary to consider the remaining evidence against the appellant.

In his reasons the trial judge made the following findings favourable to the appellant:

"I reiterate that there is insufficient evidence that Mr. Kwaimani was part of any planning back at the camp relating to this incident. Nor is there any evidence that anyone told him, either before or during the journey to the Bank, what was intended once the men got there."

"There was no evidence that he knew who the target was at the Bank or the reason for going to the Bank to commit violence. In other words he was not involved in any of the original planning."

But he made the following finding against the appellant and that finding was critical to his conclusion that the appellant was guilty:

"The fact that he knew the men were armed, had come from the MEF camp, and had a specific intention of entering business premises during business hours could have left Mr. Kwaimani in no doubt that violence was intended."

The finding the appellant knew the men were armed was essential to the reasoning and it is necessary to consider whether that finding was open. There was no direct evidence to that effect and it was an inference drawn by the trial judge from other evidence.

In the absence of the statement of 8 January the reasoning of the trial judge was as follows:

"He further says that the first time he became aware that that the men had weapons was when they came out of the Bank ... I do not accept that this was the first time Mr. Kwaimani realized that the men were armed.

Descriptions of the weapons were given by a number of witnesses, who described the axe as between 30 cm and 50 cm long, and the bush knives in the vicinity of 50 cm long. On the evidence, the men must have been armed when they first entered Mr. Kwaimani’s taxi at the camp – there was simply no other opportunity to arm themselves. To suggest that they all intentionally secreted these weapons about their persons such that Mr. Kwaimani had no knowledge of their existence until after the attack is not just realistic – the weapons were of a length which would make hiding them in their clothing while sitting in the vehicle extremely difficult,

...

I have not overlooked Moses Garu’s evidence that his attacker pulled out a long object (presumably a weapon) from the side of his thigh in his long trousers. I also note that Christina Raike in her evidence did not say she saw the men carrying weapons when they entered the Bank. Despite this, I am satisfied that Mr. Kwaimani knew the men were armed from the outset."

Clearly the three assailants did not want any member of the public seeing them armed when they entered the bank. The victim saw one of the weapons produced from a concealed place in the trousers of one of the attackers. The weapons could well have been concealed before the three left the camp, not because of an intention to conceal them from the appellant, but so that they did not have to do so subsequently. That leaves the suggestion raised by the trial judge that it would have been difficult to conceal the weapons whilst seated in the vehicle. That is not an inference which could in the circumstances be drawn beyond reasonable doubt. It is clear that for many reasons weapons in the possession of those in the back seat could be concealed from the driver. One does know what weapon the front seat passenger had in his possession or the type of clothing he was wearing. He could readily have concealed a weapon from the driver.

This Court concludes that it was not open on the evidence for the trial judge to be satisfied beyond reasonable doubt that the appellant knew from the outset the three men were armed. That removes the basis for the trial judge’s conclusion that he knew the reason for the trip was to commit violence.

The only remaining circumstance relied on by the prosecution was the fact the appellant moved his vehicle after the three alighted to a position where arguably it was ready for a quick getaway. When that is considered in light of the facts that the appellant was not party to the pre-planning and did not know the man were armed, it is not sufficient to found an inference beyond reasonable doubt that the appellant was guilty under section 21(b) or section 22 of the Penal Code.

The street in question was one-way street and there could have been any number of reasons why the vehicle was moved. It was pointed out by counsel for the appellant that after the vehicle was moved the three assailants had further to travel in order to get to it, giving the public a better opportunity of seeing them. Would the appellant have done that if fully aware of what was happening inside the Bank?

Counsel for the respondent pointed out to the Court that the case at trial was primarily based on section 21(b) with section 22 relied on as an alternative. The reasons of the trial judge only dealt with in express terms the case based on section 22. This Court has considered the case both under section 21(b) and section 22. The provisions are different and it is desirable that trial judges deal with the evidence under each of the specific provisions of the Penal Code when more than one section is called into play.

In all the circumstances this Court has come to the conclusion that the conviction was not supported by admissible evidence. The conviction was unsafe.

It follows that the appeal should be allowed, the conviction quashed, and a verdict of acquittal entered.

Goldsbrough JA
Acting President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal