Regina v Tamoli [2014] SBCA 25; SICOA-CRAC 32 of 2012 (17 October 2014)

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. 32 of 2012 (On Appeal from High Court Criminal Case No. 435 of 2009)
DATE OF HEARING:	6 AND 16 OCTOBER 2014
DATE OF JUDGMENT:	17 OCTOBER 2014
THE COURT:	Justice Goldsbrough JA, President Justice Williams JA Justice Hansen JA
PARTIES:	Regina Appellant -V- Tamoli Respondent
Advocates: Appellants: Respondent:	DPP Office A. Aulanga & Ms. Driu Appellant Public Solicitor Douglas Hou Respondent
Key words	Malice – Statement after Act by Accused Admissible
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	ALLOWED IN PART
PAGES	1-6

JUDGMENT OF THE COURT

1. The crown appeals against the decision of a High Court judge to acquit the respondent of the murder of Caiaphas Mwetamoli on 28 May 2009.
   
2. Section 21 of the Court of Appeal Act empowers this court to entertain such an appeal, which involves a question of law only.
   
3. A critical issue at the trial was whether or not the prosecution established to the appropriate standard that the respondent had malice aforethought when he did the act which caused the death of the deceased.
   

In dealing with that issue the learned trial judge said:

"I have considered statements made by the accused to witnesses after the deceased died. Those statements were not made by the accused preceding or co-existing with the act which caused the death of the deceased. Because of that, the view of this court on them is that, they can neither establish the implied or express malice of the accused for the offence of murder"

4. In consequence he disregarded those statements in assessing the evidence relevant to malice as in his view those statements were legally inadmissible on that issue. His rejection of that evidence also affected his assessment of other circumstantial evidence and the weight to be attached to the accused's statement from the dock.
   
5. The learned trial judge clearly erred in law in so holding. If his formulation of the law was correct no confessional statement could be probative on the issue of malice aforethought, which is not the law.
   
6. In Regina v Ellison Orinasikwa) (1999) SBHC28 Muria C.J said.
   

"The accused's state of mind must be established, of course, on the evidence before the court and must be done by the prosecution beyond a reasonable doubt. Such evidence would include what the witnesses, including the accused, said happened at the time of the incident or immediately prior or after the incident, so far as relevant."

7. In Manasseh Tabukai v Regina 2009 SBCA 13 this court said: "The Chief Justice correctly identified that the requisite knowledge can be inferred from words or actions" and: "... there is evidence of what was said. We do not accept Ms. Brown's submission that this evidence is irrelevant to the question of intent because it occurred after the assault. This evidence is properly probative of the accused's state of mind on the night in question and was correctly considered by the judge."
   
8. The relevance of, reliability of, and weight to be attached to statements made by an accused person after the act causing death must be considered by the trial judge in the light of all the evidence in the case. But importantly for present purposes such statements are admissible. At the end of the day the trial judge may conclude such a statement has little or no probative value but that does not mean the evidence is inadmissible.
   
9. In the present case, there were five statements, which the trial judge should have considered when determining whether the prosecution had established the necessary intent for murder. Because the trial judge considered those statements irrelevant or inadmissible on that issue he did not determine, for example, their reliability and probative value in the particular circumstances of this case. That was the relevant error of law.
   
10. To make these reasons more comprehensible the statements in question are the following:
11. • (1) The witness Margaret Inapwe heard the accused say when standing near the deceased in response to her question: "Are you looking for something to chop/cut? "the words: "Today I mean to kill him. You have no business."
      
    • (2) The witness Pepe saw people washing and trying to help the deceased. He heard the accused say: "Don't take him. Leave him. I mean to kill him."
      
    • (3) The witness John Menodi saw the deceased lying on the road and asked the accused if there had been an accident. The accused replied: "I cut Koli. "He is laying over there. I don't know if he is alive or dead."
      
    • (4) The witness Ishmael Me'ebio saw people washing blood from the deceased and heard the accused say: "Don't take him to hospital, I stop it. Leave him die there. I have every right over him because he is my brother and he had made a fool of me, I mean to murder him so I will life time."
      
    • (5) The witness Doreen Ilo saw the deceased lying on the road and asked the accused why he had killed "our brother". The accused replied: "Me tired for hem spoilem trees blong me. I must kill him to death. I went to his house and saw him cooking bananas as I cut off his pawpaw tree and I killed him."
      
12. It follows that there was an error of law which required correction by this court acting under 21 of the Court of Appeal Act.
    
13. The appellant initially contended that if the court so found there should be an order for retrial on the count of murder. But after an intimation from the court the appellant abandoned its request for a retrial. In the following circumstances that was a proper concession.
    
14. The respondent was in custody from the date of the offence, 28 May 2009, until acquitted on 10 July 2012 after a trial which took place during April – May 2012. He was in custody for about 3 ¼ years. The Notice of Appeal was filed on 31 October 2012 and first served sometime in 2013. The appeal was not listed for hearing until October 2014. The respondent was reserved with papers shortly before this hearing. The respondent travelled to Honiara to be present in person when the matter was first called. Arrangements were then made for the Public Solicitor to appear for him. If there was to be a retrial it would not be until well into 2015.
    
15. It is clear from s.10 (5) of the Constitution that this court has a discretion whether or not to order a retrial after an acquittal. There are substantial delays in this matter as indicated by the dates set out above. The respondent has spent 3 ¼ years in custody and has been free in the community for the last 2 ¼ years.
    
16. In all of the circumstances this is not an appropriate case in which to order a retrial.
    
17. This court holds there was an error of law in the trial which resulted in the acquittal. To that extent the appeal will be allowed but no retrial ordered.
    

Appeal allowed in part.

......................................
Goldsbrough JA
President of the Court of Appeal

....................................
Williams JA
Member of the Court of Appeal

....................................
Hansen JA
Member of the Court of Appeal