Gitoa v Regina [2014] SBCA 27; SICOA-CRAC 07 of 2013 (31 October 2014)

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. 07 of 2013 (On Appeal from High Court Criminal Case No. 477 of 2006)
DATE OF HEARING:	6 OCTOBER 2014
DATE OF JUDGMENT:	31ST OCTOBER 2014
THE COURT:	GOLDSBROUGH P, HANSEN JA, WILSON JA
PARTIES:	Stanley Gitoa Appellant -V – Regina Respondent
Advocates: Appellant: Respondents:	S Valenitabua, Public Solicitor R Iomea, Ms Olutimayin, DPP Office
Keywords	Murder and attempted murder – Penal Code s 22 – sworn evidence different from agreed facts – interventions by judge during course of trial. Sentence for attempted murder where no harm caused.
EX TEMPORE/ RESERVED	RESERVED
ALLOWED/DISMISSED	Appeal against conviction of murder dismissed. Appeal against conviction of attempted murder dismissed. Application for leave to appeal against sentence for attempted murder granted. Appeal against sentence for attempted murder allowed. Sentence for attempted murder set aside, and sentence of 10 years imprisonment to be served concurrently with life sentence for murder substituted
PAGES	1 – 20

JUDGMENT OF THE COURT

1. On 17 May 2013, Stanley Gitoa ("the appellant") was convicted of the murder of Ms Samua Pitakere ("the deceased") and the attempted murder of Mr Solomon Bokisia ("Bokisia") in 2001.
   
2. For the murder, the learned trial judge imposed the mandatory sentence of life imprisonment, and for the attempted murder he imposed a further term of life imprisonment, which was the maximum penalty under s 215 of the Penal Code.
   
3. The appellant appeals against the convictions, and seeks leave to appeal against the sentence for attempted murder pursuant to s 20 of the Court of Appeal Act 1978.
   
4. He relied on five grounds of appeal against conviction –
   
   1. That the trial judge erred in law in holding that the facts agreed by counsel prevailed over the oral evidence given by witnesses on oath and in court concerning the likely time of the shooting which caused the deceased's death.
      
   2. That there was a miscarriage of justice in the convictions of murder and attempted murder in that there had been numerous, consistent and undue interventions, interferences and questionings by the trial judge resulting in a fundamental breach of common law adversarial requirements in criminal cases.
      
   3. That the appellant's convictions of murder and attempted murder were unsafe and unsatisfactory in that the trial judge failed to give proper consideration to the evidence about a number of items.
      
   4. ........
      
   5. That the trial judge failed to consider the issue of aiding and abetting properly before convicting the appellant of murder.
      
   6. That the trial judge rejected the appellant's submission that a verdict of guilty of manslaughter was open without giving proper reasons for the rejection.
      
5. The sentence application was on the ground that the sentence for attempted murder was manifestly excessive.
   

Overview

6. The offences allegedly occurred in the early hours of 1 December 2001[1] on Guadalcanal, within the grounds of the Tetere Prison Compound, outside a house occupied by the deceased and others. The house was behind the prison Administration Building, separated from it by a grassed area.
   
7. The deceased's parents lived in another house in the prison compound, some distance from hers and near the main road.
   
8. The deceased died from a gunshot wound to the head. The bullet entered above her right eyebrow and exited through the left side of her head.
   
9. One or more shots were fired at Bokisia, but he managed to escape without injury.
   
10. It was night-time when the shooting occurred. The deceased and Bokisia were outside the house preparing flowers and vegetables for the market the following morning. There had been others helping them, but they had left.
    
11. The appellant lived in the village of Binu, about one and a half hours' walking distance from the Tetere compound.
    
12. At the time of the shooting, there were several armed men at the scene, and many shots were being fired simultaneously.
    
13. According to the Crown opening, either the appellant was the person who shot the deceased and shot at Bokisia or he was one of a number of joint offenders who were acting with a common purpose. The appellant denied being present.
    
14. The trial judge identified the essential issue in the case as whether the Crown had proved beyond reasonable doubt that the appellant was correctly identified as being present and active at the murder scene. (Verdict para 58). His Lordship was satisfied beyond reasonable doubt that the appellant was present (Verdict para 70) and that he fired at Bokisia with the intention of killing him. However, he was not satisfied that he fired the shot that killed the deceased, as the Crown did not prove what guns were used by whom, or what gun was used to fire the fatal shot. (Verdict para 84.)
    
15. His Lordship found the appellant guilty of murder pursuant to s 22 of the Penal Code, which is concerned with offences committed by joint offenders in the prosecution of a common unlawful purpose. He found that the appellant was on a mission to exact retribution from people he said had fired upon his village. He went to the Tetere compound with others, armed and with the clear joint intention to shoot at the people he found there. It was a probable consequence of their actions that someone would be killed. (Verdict paras 93-94.) His Lordship concluded –
    

"95. I am satisfied that the Crown has established beyond reasonable doubt, the existence of the joint enterprise and the participation of the [appellant] in it. I am therefore satisfied that as part of this joint criminal enterprise, the [appellant] is guilty of the murder of the deceased."

(Verdict para 95.)

16. His Lordship reached these conclusions after a careful consideration of all of the evidence. As he said, the Crown bore the onus of proof. He rejected the accounts given by the appellant and the defence witness Radley Varaken (DW 1), observing correctly –
    

"Of course these findings do not in any way avail the Crown. As [the appellant] is presumed to be innocent until proven guilty, a rejection of the Defence case cannot and does not prove the Crown case, for the Defence have no onus to prove anything at all. [The appellant] does not have to prove that he is innocent, the Crown have to prove that he is guilty upon relevant and credible evidence. That evidence must be of sufficient strength so as to satisfy me of the guilt of the [appellant] beyond reasonable doubt. If after an assessment of all of the evidence any doubt remains in my mind as to the guilt of the [appellant], then he is entitled to be acquitted. This is not because of any largesse shown to [the appellant], it is his right under law. "

(Verdict para 57.)

Ground 1: The time the fatal shooting occurred

17. Counsel for the appellant submitted that from the sworn evidence of PW 1 and PW 2 the trial judge ought to have been satisfied that the shooting occurred between 9.00 pm and 10.00 pm, and that his Lordship erred in law and in fact when he accepted the agreed fact that the shooting occurred shortly after midnight.
    
18. The trial commenced on Monday 29 April 2013. On the preceding Wednesday (24 April 2013) a statement of agreed facts was signed by counsel for the appellant and counsel for the respondent and filed in the court.
    
19. The agreed facts included –
    

"Shortly after midnight on the date of 1 December 2001, [the deceased] was the victim of a homicide.....

The Medical Report (2 pages) of Dr Nathan Kumamusa Kere, dated 1 Dec 2001 and his 9 Dec 2001 Statement (3 pages) are attached and are tendered by agreement of counsel."

20. Dr Kere's report included the following –
    

"The family members informed that the gunman (or gunmen) came to the home of the deceased at about 10.15 pm on 30 November 2001 and fired shots.............. the most likely cause of death was by the bullet wound into the head and death occurred about 10.30 pm on 30 November 2001."

21. The trial judge was obliged to reach a conclusion about when the fatal shooting took place after considering all of the evidence relevant to that question. In his role as the tribunal of fact, it was for him to decide what weight to attach to different evidence on the same issue, and he was entitled to prefer some evidence to other evidence so long as he had a rational basis for doing so.
    
22. The agreed facts included a relevant admission that the homicide occurred shortly after midnight on 1 December 2001. That was evidence which his Lordship was obliged to consider. See Evidence Act 2009 s 21. It was open to his Lordship to accept it in preference to the sworn evidence as to timing.
    
23. The agreed facts also included opinion evidence of Dr Kere that the death occurred at about 10.30 pm on 30 November 2001. That was the conclusion the doctor drew from what he was told by family members as to the time of the shooting (10.15 pm) and his examination of the body. However, unless that factual substratum was proved to be correct, the opinion evidence was irrelevant.
    
24. Mrs Susan Sale ("PW 1") and the deceased's mother ("PW 2") were among the people who had been helping the deceased prepare for market. Unless the trial judge accepted PW 1's evidence that it was about 9.00 pm that she left the deceased's house, there was no basis upon which he could have found that the shooting occurred between 9.00 and 10.00 pm. No other witness nominated that time, and the evidence of the deceased's father Wilson Pitakere (PW 6) supported the agreed fact that it occurred shortly after midnight.
    
25. In examination-in-chief PW 1 said that she left the deceased's house to go home. In cross-examination she said she did so at about 9.00 pm. While she was doing so, she passed close by two men walking towards the deceased's house on a dirt road within the prison compound. Both were carrying guns: one was carrying a large gun across his back while the other was carrying smaller gun. She had never seen either of them before, and did not know who they were. Soon after, she heard gunshots and started running. As she did so, she looked back and saw men near the Administration Building in front of the deceased's house. When she looked back again soon afterwards, she saw four men running after her. She continued running, and came across PW 2 lying unconscious beside the deceased's parents' house.
    
26. PW 2 said that she left the deceased's house after preparing flowers for market, but she did not testify as to the time she did so. She said that a short distance from the deceased's house she paused to wait for PW 1 to join her. While she waited, she saw a group of boys approaching from her left. They were armed. She recognised two of them – the appellant and "Fordy". She continued walking and had almost reached her own house when she heard gunshots coming from the direction of the deceased's house. Totally overcome with shock, she collapsed to the ground, where PW 1 found her. She did not say what time this happened.
    
27. The deceased's father ("PW 6") said he was at home "at around midnight or just after midnight" when he heard several gunshots, coming from the direction of the deceased's house. He found his wife PW 2 collapsed outside their house, and he and PW 1 helped her move inside.
    
28. Ms Janet Valenga ("PW 3") was at the deceased's house that night, as were her husband and children. She was helping with the market preparations outside, while her husband and children were inside watching television. While she was outside, she heard a shot. Nothing else occurred, and so she continued with her preparations. Sometime later, she and PW 2 left the deceased's house together. A short distance from the deceased's house, she passed within 12 – 15 metres of two men, and noticed that one of them was carrying a gun. She only glanced at them, and did not recognise either of them. She continued walking to her house, and when she arrived there, she heard a number of gunshots.
    
29. Bokisia (also referred to as "PW 5" and as "Solo") said that when he and the deceased were outside preparing for the market (after the others had left) he was startled by the arrival of a number of men who called out his name. He recognised two of them – the appellant and Willie Mandetta, but not the other three or four with them. Someone shouted, "Solo, don't move," to which he responded, "I only surrender once in the coffin." He dropped to the ground as many shots were fired in the direction of him and the deceased. He saw the appellant directly in front of him and only a short distance from him, pointing his gun straight at him. Shots came from the appellant's direction, but he did not notice who else was shooting. As we have said, he managed to escape uninjured.
    
30. The trial took place about eleven and a half years after the homicide. PW 1 did not say how she knew it was about 9.00 pm when she left the deceased's house. For example, she did not say she looked at a clock or the time on a mobile phone. She may well have made an honest but inaccurate estimate of time, or her recollection may have been faulty. In short, the trial judge did not err in preferring the evidence in the statement of agreed facts to PW 1's sworn evidence as to timing.
    

Ground 2: Interventions by the trial judge

31. Counsel for the appellant submitted that the trial judge's interventions during the course of the trial were such that his client was denied a fair trial.
    
32. The role of the judge in a criminal trial was summarised correctly in Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 at 127 as being -
    

"... to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case of either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel. "

(Reference omitted.)

33. In his written submissions counsel for the appellant pointed to interventions by the trial judge during DW 2's evidence as illustrative of his Lordship having exceeded proper bounds.
    
34. DW 2 gave evidence through an interpreter. His evidence was to the following effect. One evening at about 9.00 pm he and the appellant were together in Binu when they heard gunshots. Then he separated from the appellant, and he went to see members of his family. The next day he was told that the deceased had been killed. He did not say when she had been killed or whether the gunshot he heard the previous night had anything to do with her death. He said his village was about one and a half hours walk from the Tetere compound. DW 2 had been brought to court to testify as an alibi witness. The trial judge found that the evidence he gave was not alibi evidence (Verdict para 51).
    
35. The first intervention relied on by the appellant's counsel occurred during DW 2's examination in chief by defence counsel Mr Valenitabua.
    

"Mr Valenitabua:	Did you know or later came to know a woman by the name of Samua Pitakere?
DW 2:	Yes.
Mr Valenitabua:	Do you remember or did you know of the night that she died?
DW 2:	Yes.
Mr Valenitabua:	Do you remember the year if you can.
DW 2:	I know about that but I have forgotten the year.
Mr Valenitabua:	On the night that Samua died where were you?
DW 2:	I was in Binu.

FIRST INTERVENTION

Judge:	Sorry, how do you know what night she died? How do you know what night she died? You don't remember the year you tell us. Do you remember the month or the date?
DW 2:	I've forgotten the year and the month.
Judge:	All right. So how do you know when she died, how do you know which night we are talking about?
DW 2:	I don't know.
Mr Valenitabua:	May I?
Judge:	Please.
Mr Valenitabua:	Redley, you have told the Court that you remember the night that Samua died. Do you remember that?

SECOND INTERVENTION

Judge:	I don't know that he said that, he said that he knew of the night ....
Mr Valenitabua:	He knew Samua ...
Judge:	... knew of the night she died was the way the evidence was translated. Now either he knew personally or someone told him that's why I asked him how does he know, he doesn't say that he remembers that night he just knows of it.
Mr Valenitabua:	Now you have told the Court that you knew of that night, the night Samua died?
DW 2:	Yes.
Mr Valenitabua:	What made you know of that night?
DW 2:	What I know is that we heard gunshots

THIRD INTERVENTION

Judge:	I don't want to hear we did, I want to know what you did, whether you what you hear what you said what you did, not what we or other did?
DW 2:	What I know is that I heard gunshots.
Judge:	But you don't know which year, what month or what day?
DW 2:	Yes.
Judge:	Was that the first time you'd ever heard a gunshot in your life?
DW 2:	No, because after that time when the ethnic tension happened here I'd heard gunshots.
Judge:	Frequently I would expect?
DW 2:	Yes.
Judge:	I'm not sure that he establishes relevant evidence Mr Valenitabua.
Mr Valenitabua:	If I have been allowed my Lord to continue with my examination-in-chief, these are people who come from the villages. I was going step by step rather than just 4.53 [sic]
Judge:	Well, I want to be sure that he can give relevant evidence counsel before I permit you to go step by step because we are not going to waste time on a man who cannot give a time, date, month, year whether he hear this evidence.
Mr Valenitabua:	It's a long time ago my Lord.
Judge:	Exactly so.
Mr Valenitabua:	I was ...
Judge:	even more important that he'd be able to give evidence in a timely way so that he can identify which event he says he's going to testify on Oath about."

(Transcript pp 427 – 429.)

36. Counsel for the appellant submitted that these interventions affected the Defence case drastically. He submitted that they caused DW 2 to be frightened and lost, with the result that counsel found it difficult to elicit evidence from him and had to cut short his examination-in-chief.
    
37. In our view, his Lordship's interventions in this passage were not excessive but entirely proper. The first was to prevent hearsay and to clarify what the witness was saying. The second was the help defence counsel frame his question and avoid uncertainties in the answers provided. The third was to avoid hearsay.
    
38. Many witnesses are nervous and find participation in a criminal trial difficult. Far from mistreating DW 2 in any way or preventing counsel from asking questions, the trial judge simply carried out his duty to ensure the trial was conducted efficiently, and that it was not compromised by inadmissible evidence or evidence lacking in clarity. His interventions did not render the trial unfair.
    
39. The second ground of appeal was not made out.
    

Ground 3: Failure to give proper consideration to the evidence

40. Counsel for the appellant submitted that the trial judge's failure to understand the evidence on a number of items rendered the verdicts unsafe and unsatisfactory.
    
    • (a) The manner in which the appellant's record of interview("ROI") was taken and the tenor of his answers in it
      
    • (b) The Appellant's dock statement as to his whereabouts and activities on the night of 30 November 2001
      
41. The trial judge admitted the ROI into evidence, but rejected the account of events it contained. His Lordship also rejected the account the appellant gave in his dock statement.
    
42. Counsel for the appellant submitted that had the trial judge considered the tenor of the ROI carefully together with the contents and tenor of his dock statement and the sworn testimony of prosecution witnesses placing the time of the shooting as between 9.00 and 10.00 pm, it should have been clear to him that the appellant could not have shot the deceased that night.
    
43. The interview took place on 7 November 2004, almost three years after the homicide. The ROI did not relate only to the murder and attempted murder with which the appellant was charged. It also contained questions and answers about other alleged offences, which were removed by being blackened over.
    
44. In his record of interview the appellant said he remembered going to the compound the night the deceased died. He said that he had a firearm that night
    

".. because they come to my village and started shooting at us. We were trying to secure our village which is why we retaliated against the group."

(Record of interview p 4.)

This was clarified: he had two self loading rifles ("SLRs"), which were police weapons which had been issued to him in the hunt for Harold Keke and his boys. It was his idea to go and look for the boys for retaliation.

He and a boy Boni walked from the village to the Tetere compound. He denied going to the house where the deceased was living. He saw and recognised two boys there that night – Solo and Talusi. At page 4 of the ROI the appellant said that the boys were standing inside a building. They ran to the other side of the building. Then he heard gunshots coming from the direction of where the boys were. The questions and answers continued at pages 4 – 5 of the ROI –

"Q: Did you go through the building towards where [the deceased] was living?

A: No I did not go to that house.

Q: Did you shoot at Solo and Talusi?

A: Solo and Talusi were firing at us first. Then they ran to the other side of the building. When I saw them I fired up in the air.

Q: How many times you fire your gun?

A: Twice.

Q: How many boys with you?

A: Only one.

Q: Who?

A: Boni. He is from Chelamamata Village.

Q: You shoot at the house?

A: No. Solo ran from the house.

Q: What about Talusi?

A: They ran away from the house and stood at the back. That's when they fired at me.

Q: Other Witnesses have seen you and many others there that night.

A: No. During the shooting some people who live near that place were running towards my direction.

Q: Witnesses saw you and many boys walking to the house.

A: No.

Q: Did you see [the deceased] outside?

A: No.

Q: Did you know [the deceased]?

A: Yeah."

On page 6 of the ROI –

"Q: Did you shoot the house that Solomon ran from?

A: No.

Q: Did Boni shoot the house?

A: Not sure.

Q: Lots of shots hit the house and windows?

A: I don't know.

.......................

Q: Stanley if you hadn't gone to the Tetere Compound that night [the deceased] would still be alive. Do you agree?

A: I'm not sure.

Q: Stanley I am arresting to you for the murder of [the deceased] is there anything you want to say in answer to the charge?

A: I'm not sure whether I shot her or others in the crossfire."

45. In his dock statement the appellant said he never entered the Tetere compound that night, and denied knowing Solomon Bokisia. He said that he was in his village of Binu when he heard a gunshot. He decided to go to see where it had come from. He and Boni walked along the main road that led to the Tetere compound. As they approached Tetere, he saw two men sitting by the road. Those two men stood up and ran towards houses by the roadside. He walked a short distance and then heard a gunshot coming from a house. In the course of making the dock statement he pointed to the particular house on an exhibit: it was near the main road, not near the deceased's house. Hearing this, he fired two shots from an SLR rifle he was carrying, and then turned round and went back to his village.
    
46. Counsel for the appellant submitted that the evidence adduced in the dock statement showed that he was on the main road the whole time he was in the Tetere area that evening. He did not go near the deceased's house and did not see her. Thus he could not have shot her or PW5 in front of her house.
    
47. As we have already said, his Lordship did not err in finding that the shooting occurred shortly after midnight.
    
48. His Lordship was entitled to form an adverse view of the appellant's credibility. In rejecting his evidence, he said -
    

"The unsworn statement given by the [appellant] not only contradicted the version of events he gave in his record of interview but was within itself an improbable and unlikely account totally unsupported by any of the several witnesses who were at the scene. I reject the [appellant's] two accounts of the events of that night and find that I cannot accept him either as reliable or as a witness of truth."

(Verdict para 56.)

49. Radley Varaken ("DW 2") was called by the defence to give alibi evidence. The trial judge rejected his evidence, describing it as vague, imprecise, illogical in parts and unlikely in others, and said he did not regard it as credible or reliable.
    
50. His Lordship did not err in rejecting DW 2's evidence as alibi evidence. It was so vague and imprecise as to be incapable of showing that the appellant was not at Tetere when the homicide was committed, let alone showing that he was not the one who shot the appellant and attempted to kill Bokisia.
    
51. DW 2 said that he and the appellant had been together in the village when gunshots were heard. That part of his evidence may have been true, for PW 3 gave evidence (which the trial judge accepted) that sometime earlier in the evening than the fatal shooting she and others, including the deceased, were together in the same area when a gunshot was heard. However, DW 2 did not give evidence of seeing the appellant again for the rest of the night.
    
52. His Lordship did not err in failing to give proper consideration to the appellant's record of interview or his dock statement. Nor did he err in rejecting DW 2's evidence or not giving weight to it. He was careful to remind himself that his rejection of the Defence evidence did not prove the Crown case, and that the onus of proof was always on the Crown.
    
    • (c) Inconsistency in the evidence of PW 2 and PW 3 as to the number of people seen near the Police Administration Block
      
53. PW 2 gave evidence of seeing a group of boys including the appellant and Ford (also referred to as "Fordie"). She marked the place she saw them as "Y 2" on an exhibit.
    
54. PW 3 said she saw two men. She marked the place she saw them as "Z" on the same exhibit.
    
55. Counsel for the appellant submitted that the trial judge ought to have disregarded both witnesses' evidence as to the number of men they saw. Further, he submitted, the inconsistency raised doubt as to PW 2's identification of the appellant as one of those she saw. He submitted that his Lordship ought to have taken into account that it was not until 2004 that PW 2 told anyone she had seen the appellant and Ford that night in 2001.
    
56. It was clear from the evidence of PW 1 that PW 3 left the deceased's house sometime after PW 2. Thus, their observations were made at different times and different locations, and their evidence was not inconsistent. Even there had been inconsistency, it would have been open to the trial judge to accept one and reject the other.
    
57. The trial judge was satisfied that PW 2 saw the appellant on the night of the offending – a finding that was open on the evidence. They came within a short distance of her: on one occasion she said within 4-5 metres of her, on another she demonstrated 1-2 metres. His Lordship accepted that there was sufficient light (principally emanating from the house as well as some moonlight) for her observation to be a reliable one. He accepted her evidence that she had known the appellant and Ford all their lives. She described the appellant as "my child", explaining that he was her cousin sister's child. She had known him and his family since he was a child and while he was growing up.
    
58. The trial judge did not err in failing to give proper consideration to inconsistency between the evidence of PW 2 and that of PW 3.
    
    • (d) PW 6's in court denial of the contents of his statement to police on 9 July 2004 about seeing and recognising and/or identifying the appellant
      
59. In a statement he gave police on 9 July 2004 PW 6 said he clearly recognised two boys on the night of the homicide – the appellant and Fondi Sikua. When that was put to him in court, he replied –
    

"I don't know because it was in the night and I couldn't recognize anyone."

He said that the RAMSI officer who had taken the statement may have misheard what he told him. He had spoken in Pidgin, and the officer may have written down his response incorrectly.

60. Counsel for the appellant submitted –
    

"On the basis of the above ... it is more probable than not that other statements given by witnesses in the Appellant's case were incorrectly recorded or were stories manufactured by the police, involuntarily endorsed by the witnesses and regurgitated in Court during the trial."

61. We have no hesitation in dismissing these arguments. Witnesses often change their stories in court, for various reasons. The police officer was not cross-examined about the recording of the statement. There is absolutely no basis for the suggestion that the police officer may have manufactured the evidence: this is baseless speculation.
    
62. The trial judge did not err in failing to give proper consideration to this change in PW 6's evidence.
    
    • (e) PW 5's encounter with Joker Sae[2] and his activities before the shooting on the night of 30 November 2001
      
63. During cross-examination PW 5 denied that he was visited by Joker Sae on the night in question. He denied that Joker Sae came to him and asked him to go and push his truck.
    
64. Subsequently a statement by Maclean Vagalo made on 18 November 2004 went into evidence as an exhibit tendered by the Defence (Exhibit P5). Vagalo and his family shared the house occupied by the deceased and her husband and child. Vagalo said in his statement –
    

"On the day that [the deceased] died Solo [PW 5] who is a family friend came to visit. I have known Solo since before the tensions. He is from Tetere. I don't know his last name. I think he is related to my wife's family.

He arrived at about 8 – 9 pm with a message from Joker SAE for us to go and help to get the truck. He was not armed with any weapons and was by himself.

Then we went off and got the truck. There was myself, Solo and another boy went to help get Jokers truck. I don't know the other boy's name but he is from Tetere as well.

Joker didn't actually come to our house until after we had got his truck and pushed it to the Tetere Prison Compound. We tried a couple of times to push start it but it wouldn't go.

When Joker turned up he had a gun. He had a high-powered rifle. He was carrying it with him. He didn't talk to us, just to Solo."

65. Counsel for the appellant submitted that Bokisia (PW 5) lied when he denied that he was visited by Joker Sae who asked him to go and push a truck. He submitted that it could be inferred that PW 5 had lied because he did not want the Court to know about his encounter with Joker Sae, especially when the latter was armed. He submitted that PW 5 could have lied in other parts of his evidence, and that his evidence should have been rejected as unreliable.
    
66. We do not accept these submissions. It was not put to PW 5 that he lied when he said he did not see Joker Sae on the night in question; it was not put to him that he lied because he did not want the Court to know he was with Joker Sae who was armed. The submission that his evidence ought to have been rejected because it may have contained other lies is absurd.
    
67. The trial judge did not err in failing to give proper consideration to PW 5's encounter with Joker Sae.
    
    • (f) The appellant's presence at Binu with DW 2 and DW 2's understanding of the connection between the shooting at Tetere and the deceased's death
      
68. There was evidence of two shooting incidents on the night in question. His Lordship found that the fatal shooting occurred shortly after midnight. At that time, the appellant was seen at Tetere in possession of two SLRs.
    
69. DW 2 was not present where and when the deceased died. His understanding of what occurred could be no more than opinion evidence, and so was irrelevant.
    
70. We are not persuaded that there is any basis upon which this Court should interfere with the trial judge's findings of fact based on his assessment of the credibility of the witnesses. His Lordship gave careful consideration to the evidence of all the witnesses, noting where there were consistencies and inconsistencies in the various accounts. His assessment of the evidence was thorough and patently rational.
    
71. The trial judge did not err in failing to give proper consideration to the appellant's presence at Binu with DW 2 and DW 2's understanding of what occurred.
    
72. Ground 3 of the appeal has not been established.
    

Grounds 5 and 6: Murder or manslaughter? Aiding and abetting ... joint enterprise

73. Ground 5 of the appeal is that the trial judge erred in failing properly to consider aiding and abetting before convicting the appellant of murder. Ground 6 is that his Lordship erred in not giving proper reasons for rejecting the appellant's submission that a verdict of manslaughter was open. These grounds can conveniently be dealt with together.
    
74. In opening the Crown case senior counsel for the Prosecution relied on two alternative bases of criminal liability –
    

Either the appellant was the person who shot the deceased and shot at Bokisia

Or he was one of a number of joint offenders who were acting with a common purpose.

(Appeal record pp 13 – 14; Transcript pp 529 – 531.)

75. The defence case was that the appellant was not present.
    
76. The trial judge was satisfied that the appellant was present.
    
77. During submissions made after the evidence had concluded, the trial judge asked counsel what the proper verdict would be if he were not satisfied beyond reasonable doubt that there was a joint enterprise, but nevertheless satisfied to that standard that the appellant aided and abetted the killing. Defence counsel responded that it would be guilty of manslaughter. (Transcript pp 527 – 529.) Junior counsel for the Prosecution conceded that if the Defence had not had fair notice of the Crown's theory and had been prejudiced in the conduct of the defence, it would be inherently unfair to allow the Crown to rely on aiding and abetting. However, he submitted, in this case there would be no prejudice to the Defence. In other words, the trial judge could convict the appellant of murder. (Transcript pp 531 – 532.)
    
78. In the event, the trial judge was satisfied beyond reasonable doubt of the existence of a joint enterprise and the participation of the appellant in it. His Lordship was satisfied that "as part of this joint criminal enterprise" the appellant was guilty of the deceased's murder. (Verdict para 95). Accordingly, the question as to the proper verdict which his Lordship had posed to counsel did not arise.
    
79. On appeal, it was common ground that the issue of aiding and abetting did not arise because no principal in the first degree was identified. In other words, the facts would not have supported a verdict of guilty of manslaughter based on aiding and abetting.
    
80. Counsel for the appellant submitted nevertheless that the convictions [sic] should be set aside because the trial judge erred in law by misstating the law on joint enterprise.
    
81. Only the conviction for murder rested on s 22 of the Penal Code. His Lordship was satisfied beyond reasonable doubt that the appellant fired at Bokisia with the requisite intent, and so any error of law in relation to s 22 could not be a basis for setting aside the conviction for attempted murder.
    
82. It was common ground on appeal that his Lordship did misstate the law on s 22 when he said that the joint criminal enterprise "need not have been reached at any time prior to the time the crime is committed." (Verdict para 88.) Although the agreement need not be longstanding, it must be reached before doing the act or acts constituting the crime.
    
83. However, as counsel for the respondent submitted on appeal, his Lordship's misstatement of the law did not affect his conclusion on the facts.
    
84. In all these circumstances, Ground 5 of the appeal has not been made out.
    
85. Ground 6 is that the trial judge erred in rejecting the appellant's submission that a verdict of guilty of manslaughter was open without giving proper reasons.
    
86. There is no point in considering this ground in so far as it relates to the aiding and abetting issue, given counsel for the appellant's acknowledgement before this Court that the issue did not arise on the facts.
    
87. The trial judge found the appellant guilty of murder pursuant to s 22 of the Penal Code. That section provides –
    

"Offences committed by joint offenders in prosecution of common purpose

22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such a purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

88. His Lordship's reasoning is apparent from these final paragraphs of his verdict -
    

"93. In my assessment the evidence, the [appellant] was on a mission to exact retribution from those he had said had fired upon his village. However, as the two locations were some distance apart, taking 1½ hours to walk from one to the other, I do not believe that the [appellant] thought that shots he heard coming from the Tetere area could possibly have been aimed at his village.

94. He went directly to the Tetere compound with others, armed and with the clear joint intention as was subsequently shown by their actions, to not only point the guns at the people he found there but to shoot at them from a short distance away. Not only was it a probable consequence of their actions that someone was killed, what is surprising is that others were not.

95. I am satisfied that the Crown has established beyond reasonable doubt, the existence of the joint enterprise and the participation of the [appellant] in it. I am therefore satisfied that as part of this joint criminal enterprise, the [appellant] is guilty of the murder of the deceased."

(Emphasis added.)

89. His Lordship was satisfied that the appellant was a participant in a joint enterprise, and that the common intention of the participants was to shoot at the people they found at the Tetere compound from a short distance. It can be inferred that he was satisfied the participants' common intention was at least to cause grievous bodily harm to those people if not to kill them. There was no evidence that the participants had different intentions. There was no evidence that any of the participants departed from the common purpose.
    
90. In these circumstances, a verdict of manslaughter was not open. His Lordship gave adequate reasons for his conclusion that the appellant was guilty of murder.
    
91. Ground 6 has not been made out.
    

Conclusion on the appeals against conviction

92. Although the appeal was brought against the murder conviction and the attempted murder conviction, the submissions were directly principally at the murder conviction. As we understood counsel for the appellant's submissions, he did not suggest that there would be any basis for setting aside the attempted murder conviction if the appeal against the murder conviction were dismissed.
    
93. None of the grounds of appeal has been made out. Accordingly, the appeal against the conviction of murder should be dismissed, and the appeal against the conviction of attempted murder is dismissed.
    

Application for leave to appeal against sentence for attempted murder

94. In his sentencing remarks the trial judge noted that the offences of murder and attempted murder had been committed at night, in the company of others, while the appellant and others were armed with powerful weapons. They attacked a young man and a young woman and fired upon a house in which there were several children. All of those persons were unarmed and completely defenceless.
    
95. His Lordship rightly described the appellant's conduct as appalling, dishonourable and disgraceful in every sense of those words.
    
96. The appellant showed absolutely no remorse, and was convicted at trial.
    
97. Born in 1977, he was about 24 years old when the crimes were committed and about 36 at sentence. His Lordship said –
    

"7. The penalty for attempted murder provides for up to life imprisonment. I have given considerable thought to the appropriate penalty to impose in respect of this offence and have taken into account what little can be said on your behalf. You are still relatively young and you have a wife and a large family of 7 children. You have no previous convictions and have had a very limited education. While I am being asked to remember your family in passing sentence, it is a pity you did not remember them when committing these offences."

98. His Lordship continued –
    

" 9. In the present case, I note that through no thanks to you, only one person lost their life in what in retrospect has to be considered something of a miracle. With several gunmen firing powerful weapons both at the people outside the house and at the house which contained a number of children, one can only imagine the carnage that might have ensued. It was your cruel and callous disregard for human life that characterises your crimes and makes this offence of attempted murder, one of the worst examples of its type.

8. For that reason, it is appropriate in my judgment to impose the maximum penalty provided by law."

99. Counsel for the appellant submitted that the sentence was manifestly excessive.
    
100. Counsel for the respondent submitted that, given the circumstances of this offending, the principles of sentencing and relevant mitigating factors, it was open to his Lordship to impose the maximum penalty. He submitted that the appellant had failed to demonstrate error in his Lordship's exercise of the sentencing discretion.
     
101. We have not been referred to any case in which the facts were truly comparable with these. The appellant's conduct was dreadful and deserving of condign punishment. While the attempted murder was committed in the same context as the murder, its outcome was fortuitously innocuous. The victim Bokisia managed to escape without suffering any physical harm, and there is no evidence he suffered any psychological harm.
     
102. Generally, the extent of the damage caused by offending conduct is a relevant factor in sentencing. As Williams JA said in R v Tufuga [2003] QCA 171 at [20] –
     

"Generally in the criminal law a blow which by good luck has caused little damage will attract a lower penalty though there was a risk of it causing catastrophic results."

103. We consider that the sentencing judge erred in not giving effect to this principle, and that the sentence his Lordship imposed for the attempted murder was manifestly excessive. In our view an appropriate sentence would have been 10 years imprisonment to be served concurrently with the life sentence for murder.
     
104. The application for leave to appeal against the sentence for attempted murder should be granted, the appeal against sentence should be allowed, the sentence should be set aside, and a sentence of 10 years imprisonment to be served concurrently with the life sentence for murder should be substituted.
     

The Orders of the Court are as follows:

1. Appeal against conviction of murder dismissed.
2. Appeal against conviction of attempted murder dismissed.
3. Application for leave to appeal against sentence for attempted murder granted.
4. Appeal against sentence for attempted murder allowed.
5. Sentence for attempted murder set aside, and sentence of 10 years imprisonment to be served concurrently with life sentence for murder substituted.
   

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Goldsbrough P
President of the Court of Appeal

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Hansen JA
Member of the Court of Appeal

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Wilson JA
Member of the Court of Appeal

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^[1] Amended Information filed 29 April 2013.
^[2] The statement of Maclean Vagalo (pp 21 – 22 of the Supplementary Appeal Book) referred to “Joker SAE”, as did the relevant ground of appeal. In the transcript the person was described as “Sae Joker”. Nothing turns on this inconsistency, and we have assumed that his family name was “Sae” and have referred to him as “Joker Sae”.