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Court of Appeal of Solomon Islands |
IN THE SOLOMON ISLANDS COURT OF APPEAL
| NATURE OF JURISDICTION | Appeal from Judgment of the High Court of Solomon Islands (Pallaras, J.) |
| | |
| COURT FILE NUMBER | Criminal Appeal Case No. 18 of 2013 (On Appeal from High Court Criminal Case No. 45 of 2011) |
| | |
| DATE OF HEARING | 30th October 2013 |
| DATE OF JUDGMENT | 08th November 2013 |
| | |
| THE COURT | Williams, Acting President |
| | Sir Gordon Ward, JA |
| | Sir John Hansen, JA |
| PARTIES: | FREDRICK BOLEA Appellant -V- REGINA Respondent |
| ADVOCATES: Appellant: | Stanley Aupai and Sevuloni Valenitabua |
| Respondent: | Andie Driu and Augustine Aulanga |
| KEY WORDS: | Murder; self-defence; provocation; evidence; relevance; hostile witness. |
| RESERVED: ALLOWED/DISMISSED: | DISMISSED |
| PAGES: | 1 - 14 |
JUDGMENT OF THE COURT
Introduction
[1] Following trial, Pallaras J, on 9 July 2013, convicted the appellant of the murder of Edward Tove on 17 March 2010. He was sentenced to life imprisonment.
[2] He appeals his conviction on no fewer than eight grounds, although in fairness a number of those grounds overlap.
Background
[3] There was a history of ill-feeling between the appellant, the deceased and the deceased’s family. Both the appellant and the deceased came from Haroro Village, West Big Ngella in the Central Islands Province. The incident leading to the death of Mr Tove occurred on 17 March 2010. The Crown case was that around 7 to 7.30 p.m. on that date the appellant was sitting outside Nester Lelegi’s kitchen at Haroro Village. While he was sitting there, the deceased came to the kitchen. The deceased asked the appellant why he had not left the village. In the course of the ensuing argument the appellant arose and struck the deceased on the head with a stick. (The appellant admitted this at trial). The deceased attempted to flee but was assaulted by the appellant, who had chased him, by kicks to both the head and the body. Witnesses described these as heavy kicks. The post mortem report revealed that the deceased’s injuries included a left extradural haematoma, a fractured skull and lacerations to his brain. There were also injuries to other parts of his body consistent with the kicks described by witnesses. He died in Tulagi Hospital on 18 March 2010, death being consistent with a blunt force trauma to the head.
[4] The Agreed Statement of Facts makes it plain that the defence put two matters in issue. The first was the killing unlawful. The second was whether the accused had malice aforethought. It became apparent to the judge as soon as cross examination of the first witness commenced that in fact the appellant was relying on self-defence. Provocation was never raised.
The appeal
[5] From the Notice of Appeal the following are the (overlapping) grounds of appeal :
“ 1. The learning Judge erred in law in failing to consider all the relevant evidence of the events of 7 March [sic] 2010, before and leading to the fight between the deceased and the appellant.
Submissions
[6] We will follow the groupings applied by counsel for the appellant in the written submissions. However, at the outset, we note the concession of counsel for the appellant in oral submissions that to succeed on their submissions relating to the failure of the judge to accept self defence or to consider provocation there needed to be a factual finding that the deceased swung an axe at the appellant outside Nester’s kitchen around 7 pm.
Grounds 1 and 2
[7] Grounds 1 and 2 have their genesis in matters that occurred earlier in the day involving the appellant and the deceased. Indeed, it appears the appellant argues that matters even before that day should also be taken into account. It appears the disagreement between the appellant, the deceased and the deceased’s family was because the appellant transported the deceased’s wife and child to Maevo Village after the deceased had assaulted his wife. Late on the morning of 17 March, or around noon, the appellant saw the deceased fighting with his brother, and the deceased was holding a small axe. The appellant said the deceased said to him “Wait for me, I'm coming”. The appellant said he walked back to his house and he was pursued by the deceased, who threatened to cut him with the axe, the deceased lifting the axe as if to cut him. The appellant then shouted to the deceased’s father, who was standing near them, to come and take hold of the son.
[8] Later in the day there was a further incident which involved the deceased’s father telling the appellant to leave the village, the deceased saying he would come and kill him and the deceased’s mother swearing at him. As a consequence, the appellant’s sister told him to do what was suggested, and leave the village. The appellant got his bag and walked to Nester’s house to get his canoe to leave.
[9] While waiting at Nester’s, the incident that led to the death of the deceased occurred as outlined above. It is submitted on behalf of the appellant that the trial judge failed to give sufficient or any weight to the evidence of events earlier in the day when determining the issue of self-defence.
[10] The respondent submits that it is clear from reference to [35] to [45] of the judgment that these matters have clearly been set out by the trial Judge and considered by him in [46].
Grounds 3, 6 and 7
[11] Counsel for the appellant referred to the evidence of a girl, Priscilla Kosisali, to the effect that she saw the deceased holding an axe in the morning, although she actually said around midday. This was in the course of arguments involving the deceased and the appellant. In relation to that incident, she says that after the axe was swung by the deceased, the appellant put down his “long knife” and walked away. She said he did not swing the knife. However, Ms Kosisali gave no evidence of seeing the axe when the incident occurred leading to the death of the deceased.
[12] The appellant’s counsel goes on that there was evidence that the deceased had swung an axe at the appellant outside Nester’s kitchen. This evidence came from the appellant himself, and from his sister. The evidence of both witnesses was firmly rejected by the Judge, and he gave reasons for so doing.
[13] The respondent says it is clear the Judge considered these matters, made factual findings and gave clear reasons why he did not place weight on the evidence.
[14] Ground 6 is essentially a submission that because of Ms Kosisali’s evidence and the appellant saying that he saw the axe during the 7 p.m. incident, the Judge was required to infer that the deceased could still have had an axe in the evening. In fact, we understood the submission to go further in requiring that the judge had to infer that the deceased swung the axe at the appellant at the start of the fatal incident.
[15] The respondent says this evidence was available to the Judge, and he had rejected the appellant’s evidence of an axe being present at 7 p.m. as fanciful.
[16] It is further submitted by the appellant that given the severity and ferocity of the appellant’s reaction to the swinging the axe at him, it was only reasonable to infer that the appellant had faced a very real threat. It is then said, for reasons that are hard to fathom, that it was reasonable to infer that in the circumstances the deceased had the axe in his possession, he swung it at the appellant, and the appellant’s actions were in self-defence. As the respondent properly points out, this does not accord with the factual findings of the Judge, which were clearly available to him.
[17] Next, the appellant argues that there was evidence to support the defence of provocation and the Judge was obliged to address that. The appellant argues that the provocation should be viewed cumulatively, including the previous animosity, the matters that occurred during the course of the day and the events that occurred starting around 7 p.m.
[18] The respondent submits that the 7 p.m. incident was some hours after the last of the earlier incidents, the appellant had walked away from the confrontation, and this was not a case where cumulative provocation should be considered.
Ground 4
[19] Ground 4 relates to the prosecution application to admit the police statement of Matilda Bolea under s 118 of the Evidence Act. Evidence was given by Detective Constable David Tarai as to the circumstances leading to the taking of the statement and the age and infirmity of Mrs Bolea. Counsel for the appellant did not cross-examine Detective Constable Tarai, however, he did ask some questions following some questions put to the witness by the Judge. Those questions related to whether or not there were police vehicles at the Tulagi Police Station, and whether there were police outboard motors. He did tender further questions to the Detective Constable, but they had nothing to do with the statement.
[20] The respondent accepts that although the Judge said there would be cross-examination of Detective Constable Tarai followed by submissions, the right of submission was not afforded to the appellant. However, the respondent submits the evidence was overwhelming and no substantial miscarriage of justice occurred.
Ground 5
[21] Ground 5 relates to the Judge acceding to the prosecutor’s application that the witness Doreen Buri be declared hostile. She is the appellant’s sister. The appellant submits that the only inconsistency between the evidence of Doreen Buri and her police statement was where the stick wielded by her brother hit the deceased.
[22] It was submitted that this inconsistency was not sufficient to allow the Judge to declare the witness hostile and permit the prosecution to cross-examine her. Further, the appellant submitted that Mrs Buri’s evidence was rejected by the Judge in its entirety just because of that one inconsistency. The appellant further submitted that given his own admission he hit the deceased with the stick the minor inconsistency should not have lead to the prosecution’s application being granted.
[23] However, the respondent said this was an exercise of a discretion by the Judge, which he was entitled to exercise in the way he did, but more importantly her evidence was not dismissed on the basis of her being hostile, or the one small inconsistency. Rather, it was the Judge’s overall assessment of that witness.
[24] Finally, the appellant submits the failure of the Judge to give less or no weight to the evidence of the appellant avoiding any fight with the deceased earlier in the day, and walking away from confrontations; failing to put provocation; failing to consider self-defence; the Judge erred in failing to acquit the appellant of murder or, alternatively, finding the appellant guilty of manslaughter.
[25] The respondent submits there were proper grounds for the rejection of self-defence and provocation, and ample evidence to support an intent to kill and to cause grievous bodily harm.
Decision
Grounds 1,2 and 3
[26] As we have already noted self-defence and provocation in the appellant’s submissions are based upon the proposition that at the time of the 7 p.m. incident the appellant was confronted by an axe-swinging deceased. There was also, it appears, a denial of kicking the deceased in the head during the chase, or at any other time. To be blunt, such a submission is simply contrary to the clear and available findings of the Judge. Indeed given his justified findings on the evidence such finding seems inevitable.
[27] Further, it is clear that the Judge took into account the earlier animosity and antipathy between the appellant and the deceased and his family, concluding, after reviewing this evidence:
[46] It is apparent from this summary of the evidence that there is a wide variation in the facts asserted by the prosecution and the defence. The case is not to be decided by a quantitative evaluation of the number of witnesses giving the varying accounts, nor is it to be decided by which account is preferred by the Court. It is not a question of preference or a numerical accounting of the versions given. The onus on this case, as in all criminal cases, is on the prosecution to prove beyond reasonable doubt the elements of the offence as charged. The defence do not have to prove that their version is preferable, they have no burden to prove anything at all. It is upon the prosecution to prove their case and to prove it to the criminal standard of beyond reasonable doubt. Furthermore, once the issue of self-defence has been raised, as it has been raised in this case, the accused does not have the onus of proving that he was acting in self-defence. The onus is on the prosecution to prove that he did not act in self-defence.
[28] There is evidence from the prosecution witness Ms Koisali, and the statement of Mrs Bolea, that when the deceased arrived he said to the appellant words to the effect of why was he was still there and that he should leave. Koisali and Mrs Bolea’s said the appellant’s response was for the appellant to get up and strike the deceased on the head with a large stick, which caused him to fall to the ground. Mrs Lelegi had gone into the kitchen but heard a noise like a stick hitting a body and another like the kicking of a body. She said she returned to the scene and that both she and the deceased’s sister intervened in an attempt to stop the appellant’s assault. She also said she and the sister said words to the appellant to the effect that if he didn’t stop he would kill the deceased. Mrs Lelegi also said she heard the deceased say “I will kill him die”. In cross examination it was put to her that she never heard the appellant say “yes I will murder him” but she answered she “heard them with my own ears”.
[29] These prosecution witnesses, excepting Mrs Buri, also said that the appellant lifted up the deceased and kicked him; that the deceased tried to get away, moving like “a drunken man”, while pursued by the appellant; that the deceased fell down behind one of the houses and was picked up and pushed towards the front of the house, where the appellant kicked at the deceased’s legs, causing him to fall down again; then the deceased was kicked in the head. These witnesses denied that the deceased was carrying anything.
[30] The prosecution witness, Mrs Mudu saw the appellant chasing the deceased, yelling out “Go away or I will kill you!” She saw the appellant kick the deceased’s back and head. She estimated he kicked him five times in the back, before the deceased fell to the ground outside Mr Kuvi’s house, and described the kicks as strong and hard. She saw many kicks to the right leg, and a kick to the head and in the ribs. Mr Kuvi saw the appellant and the deceased outside his house. He said the appellant kicked at the legs of the deceased, who fell to the ground. While the deceased lay on the ground, Mr Kuvi saw the appellant with a “strong, hard kick”, kick the deceased once in the head. Mr Kuvi was very close to this incident.
[31] A Mr Binga described earlier in the day of the fight he had seen the appellant obtain the stick. Mrs Bolea’s statement said that when the appellant arrived at the Lelegi kitchen, he had a stick with him. The appellant said he had the stick to support a radio aerial in his canoe when he left. Given the evidence and the events of earlier in the day we consider it reasonable to infer he had armed himself with the stick
[32] Both the appellant and his sister said that before the appellant struck the deceased with the stick, the deceased swung an axe at him. The Judge rejected that evidence as fanciful, and rejected totally the evidence of the sister. He found beyond reasonable doubt that the deceased did not hold an axe, or swing it at the appellant, and he was further satisfied beyond reasonable doubt that the appellant did not act in self-defence when he struck the deceased. He also accepted the evidence of the prosecution witnesses set out above. In our view, such findings were clearly available to the learned trial Judge and the appellant has failed to put forward any valid reason that would have prevented the trial judge from reaching those factual conclusions. As a consequence grounds 1,2 and 3 are rejected.
Self defence
[33] Section 17 of the Penal Code provides that:
Subject to any express provisions in this Code, or any other law in operation in the Solomon Islands, criminal responsibility for the use of force and the defence of personal property shall be determined according to the principles of English common law.
[34] In Palmer v The Queen [1970] UKPC 2; [1971] AC 814 at 831-832, Lord Morris of Borth-y-Gest articulated self-defence as follows:
It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation...
Further:
If there has been an attack so that self-defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken... the defence of self-defence, where the evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence... The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected.
[35] In Zecevic v Director of Public Prosecutions [1987] HCA 26, the joint judgments of Wilson, Dawson and Toohey JJ, following the Privy Council’s in Palmer at 831-832, recognised:
The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.
[36] And in The State v Li Jun CAV oo17 of 2007 at [46]:
The test in Zecevic is not wholly objective. It is belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable. The test is not what a reasonable person in the accused’s position would have done: R v Conlon (1993) 69 A Crim R 92, 99, per Hunt CJ at CL; R v Hawes (1994) 35 NSWLR 294, 304 per Hunt CJ at CL, with whom Simpson and Bruce JJ agreed. It follows that where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to reasonableness of his or her response to the threat: R v Conlon, 99.
[37] The factual situation is that the deceased arrived without a weapon and simply shouted at the appellant. No particular personal characteristic of the appellant has been advanced by the appellant, either to the trial judge or in submissions to us. The start of the fatal confrontation was a very low-key one compared to what had occurred earlier in the day. The simple fact is there was there no perceived threat to the life, or threat of serious injury to, the appellant. There was no necessity for him to attack the deceased with a stick and kick him in the head. The Judge was right to find that self-defence did not arise. Further, all the evidence of the prolonged chase and the additional kicking following the first blow with the stick makes it clear that the Judge’s finding at [51] that the response was grossly excessive and committed long after any threat to the life of the appellant had disappeared, was correct.
[38] Inevitably, given the Judge’s factual findings, he was right to reject the defence of self-defence.
[39] That is sufficient to dispose of appeal grounds 1 to 3, and 6.
[40] We would add, however, that it was fanciful in the extreme to submit to the Court that because Ms Koisali had seen the deceased with an axe earlier in the day, and because the appellant and his sister said the deceased had an axe at the relevant time, the trial Judge, and this court, had to infer the axe was present. Inferences need to be based on proven facts. The only facts are that earlier in the day the deceased had a small axe. As to whether he had it at the relevant time, there was a clear contradiction between the appellant and his sister and the other witnesses, and the Judge was clearly entitled to make the finding he did. We reject ground 6.
Provocation
[41] Provocation is defined in s 205 of the Penal Code as:
205. Where on a charge of murder there is evidence on which the Court can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be determined by the court; and in determining that question there shall be taken into account everything both done and said according to the effect which it would have on a reasonable man.
[42] The classic definition was given by Devlin J in R v Duffy (1949) 1 AER 932, as cited by Lord Goddard CJ in R v Whitfield (1976) 63 CrAppR 39 at 42:
Provocation is some act, or series of acts, done [or words spoken] by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
[43] We accept there is room for the concept of cumulate provocation, although it is the temporary and sudden loss of self-control arising from an act of provocation which is essential. In R v Brown [1972] 2QB 229, a direction that the jury had to find provocation in something done on the morning of the killing was approved. However, in R v Davies [1975] QB 691, the Court of Appeal described as “too generous” a direction the jury could review the whole of the deceased’s conduct throughout the years preceding the death. Each case must be considered against the background of its own particular facts; R v Thornton (1992) 96 CrAppR 112, CA.
[44] Even though not raised by the appellant at trial, if there is evidence to support such a defence, it is incumbent on the judge to consider it (see R v Tumanako (1992) 64 A Crim R 149 (NSWCCA) at 154).
[45] In this case, there were incidents earlier in the day. The first seems to be late in the morning or around noon, and the second somewhat later. It appears some hours had passed since the last of these. It is also important to note that the earlier confrontation was ended by the appellant taking the responsible step of walking away. We are satisfied that any provocation that may have arisen from those earlier events was well spent at the time of the fatal incident. In any event, as already recorded provocation is dependent, like self-defence, on the deceased swinging an axe at the appellant at the start of the fatal incident. Factually that has already been rejected. At that time, to put it at its strongest on the evidence, the deceased shouted to the appellant words to the effect “Why are you still here?” and “You should leave.” We do not accept that those words, even if shouted, (noting some witnesses stating they were simply said), would cause the appellant a sudden temporary loss of self-control, rendering him so subject to passion he was not master of his mind. It is not incumbent on a Judge to put provocation to a jury unless there is an evidential foundation for it. Here, there was no such foundation.
[46] We reject ground 7.
Ground 4
[47] Ground 4 is governed by s 118 of the Evidence Act 2009, which reads:
118. (1) A hearsay statement is admissible in any proceeding if –
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either –
(i) the maker of the statement is unavailable as a witness; or
(ii) in any case where the court considers that undue expense and delay would be caused if the maker of the statement were required to be a witness.
(2) In a criminal proceeding, no hearsay statement may be offered in evidence unless –
(a) the party proposing to offer the statement has given reasonable notice of the intention to rely on the statement; or
(b) another party has waived the requirement for notice; or
(c) the court dispenses with the requirement for notice in the interest of justice.
(3) If an accused in a criminal proceeding does not give evidence, the accused may not offer his or her hearsay statement as evidence in the proceeding.
(4) In this section, ‘circumstances’, in relation to the statement by a person who is not a witness, includes –
(a) the nature of the statement; and
(b) the contents of the statement; and
(c) the circumstances that relate to the making of the statement; and
(d) the circumstances that relate to the truthfulness of the person; and
(e) any circumstances that relate to the accuracy of the observation of the person.
(5) For the purposes of this section, a person is unavailable as a witness in a proceeding if the person –
(a) is dead; or
(b) is outside Solomon Islands and it is not reasonably practicable for him or her to be a witness; or
(c) is unfit to be a witness because of age or physical or mental condition; or
(d) cannot with reasonable diligence be identified or found; or
(e) is not compellable to give evidence.
(6) Subsection (1) does not apply to a person whose statement is sought to be offered in evidence by a party who has caused the person to be unavailable in order to prevent the person from attending or given evidence.
[48] We accept that the appellant’s counsel was not given the opportunity to make submissions following the evidence of Detective Constable Tarai. However, in the course of the appeal we invited counsel to advise what worthwhile submissions could have been made given the extent of his evidence. He submitted that Mrs Bolea was old and her eyesight could have been bad. This was never put to D C Tarai. In any event it goes to weight not admissibility. In relation to weight we simply note in passing that the defence never addressed this matter to the judge in closing.
[49] We are satisfied the grounds that needed to establish admissibility under s 118 were clearly made out, and the Judge’s decision was correct in admitting the statement. We reject ground 4.
Ground 5
[50] In relation to ground 5, while sensing the judge’s frustration we accept that the small inconsistency identified between Doreen Buri’s evidence and her police statement was a tenuous basis for a finding that she was a hostile witness. However, more importantly, we accept the respondent’s submission that this was not the basis upon which her evidence was rejected. Given the clear statement of the Judge, we do not understand why the appellant’s submission insisted that it was this small inconsistency that led to the rejection of her evidence. Rather, the reasoning can be found at [26] of the judgment:
I admitted the prosecutor to cross-examine the witness while limiting the scope of questioning. An edited extract of a police statement was tendered by consent of both parties. While the reasons for acceding to the application of the prosecutor were given during trial, I indicate here that I regarded the witness as totally unreliable. She was very slow to answer any question that, after she gave it considerable thought, might have been in any way incriminating of the accused. I was not satisfied that she was a truthful witness, and her frequent glances and smiles towards her brother were instructive. She was evasive and unco-operative in the extreme. While one can have sympathy for her position as the sister of the accused, she fell far below the standard required for a witness to be considered truthful, reliable or credible. I reject her evidence in toto.
[51] That paragraph makes clear that it was an overall consideration of the evidence of Mrs Buri and the Judge’s observations of her while given evidence that led to the rejection of her evidence. The Judge was perfectly entitled to reach such a conclusion. We reject ground 5.
Ground 8
[52] In relation to ground 8, it must be rejected. We have already dealt with self-defence and provocation. The balance seems to be a submission that the verdict was unsafe and unsatisfactory.
[53] In this case, it was clearly open to the Judge to accept the evidence of the prosecution witnesses to the 7 p.m. incident. The post mortem showed bruises, haemorrhages, lacerations and abrasions. These were consistent with a sustained and vicious attack, as described by the prosecution witnesses, and accepted by the Judge. This evidence supports a finding that the appellant possessed the intent to cause grievous harm. But the matter went further, because Ms Koisali heard the appellant say “I will kill him, die”; Mrs Lelegi said the only words she heard from the appellant during the incident were “I will kill him, die”; and Mrs Mudu “Get away or go away or I will kill you”. These statements, accepted by the trial Judge, are consistent with intent to kill. The accepted evidence shows a situation where it was the appellant in control throughout, he was not provoked and there was no danger to his own life or injury.
[54] This is an appeal devoid of merit. It is dismissed.
...........................
Williams JA
Acting President
...........................
Sir John Hansen J A
Member
...........................
Sir Gordon Ward JA
Member
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