Regina v Abba [2014] SBCA 30; SICOA-CRAC 14 of 2014 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

PARTIES:

Regina
Appellant

V

Emerald Finiorea Abba
Respondent

Advocates:
Appellants: J Naigulevu& N Kesaka
Respondent: MHolara and S Valenitabua

Key words

Murder identification evidence, Recognition evidence.
EX TEMPORE/RESERVD: ALLOWED/DISMISSED

THE COURT: Williams JA,
Sir John Hansen JA,
Wilson JA

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Pallaras J)

COURT FILE NUMBER: CriminalAppeal Case No. 14of 2014 (On Appeal from High Court Civil Case No. 227of 2013)

DATE OF HEARING: 9 OCTOBER 2014
DATE OF JUDGMENT: 17 OCTOBER 2014

JUDGMENT OF THE COURT

1. Following trail, Pallaras J acquitted the respondent of murder in a verdict handed down on 9 July 2014. The appellant appeals that acquittal, pursuant to s 21(2) of the Court of Appeal Act, which allows a Crown appeal only on points of law.
   

Background

2. Between midnight and 1 a.m. on 17 February 2014, an intoxicated deceased contacted a relative to accompany him home. That relative, his brother, Chris IroBasi (PW 1), came from his office and met the deceased at the main road leading to the Mbokona Central Bank compound.
   
3. As they neared the Mbokona Bridge, dogs started barking and chased them. The deceased shouted to the owners to restrain the dogs, and as they reached the last house before the bridge, two unknown persons appeared. The deceased told them to restrain the dogs or he would cut them. As they crossed the bridge, rocks were thrown, and the deceased yelled out and swore. The brothers continued walking up the road past the bridge, and came to the respondent's front gate. There was some shouting and swearing and the deceased broke down the front gate and entered the compound. Ultimately, a fight broke out, between the deceased and the others in the compound. During the fight, the Crown allege the respondent hit the deceased with a piece of timber which caused head trauma and death.
   
4. Not atypically for a late-night, drunken brawl, there was evidence those inside the compound had been drinking as well. There was disagreement between witnesses as to who was present, the lighting, and what actually occurred. Much of that dispute was between the evidence of PW1 and the others present inside the compound. Despite those disputes, it does seem to be abundantly clear that the lighting inside the compound was not good.
   

The verdict

5. The judge recognised the sole issue at trial was identification.
   
6. First, he addressed the defence evidence from the respondent's wife and son. It was only the son, Arnold Abba's, evidence that was relevant. The judge rejected the bulk on this witness's evidence. However, and importantly, in the context of this appeal, the judge found that PW1 knew the son and that the son was present during this incident.
   
7. The Judge then reminded himself he needed to return to the principal question of whether the Crown had satisfied him beyond reasonable doubt of the guilt of the respondent. He then stated:
   

(12) ... It is to the strength of their case rather than any shortcomings that might be said to exist in the defence case that I now turn.

8. He immediately identified, correctly, that PW 1 was a crucial witness, and analysed his evidence with considerably care. He concluded that in the circumstances pertaining that night PW 1 was an honest but unreliable witness.
   
9. The Judge then turned to summarise the evidence of other witnesses at the scene, which effectively stated that the respondent did not have a stick and did not hit the deceased. Some of those witnesses did confirm that they saw other persons with sticks and assaulting the deceased.
   
10. Accordingly, he found the Crown has failed to prove that the deceased had struck the fatal blow or, indeed, any blow. After reviewing the balance of that evidence, the Judge concluded as follows:
    

(37) As I have alluded to, the differences between PW 1's evidence and the balance of the Crown case on the issues of the source and quality of the lighting, who was present at the scene, how many of those present were armed with pieces of timber and how many blows were struck are considerable. I am not in a position to find with surety where the light was coming from, however I do find as a fact that the lighting within the compound where the fight took place, was very poor. The evidence that the lighting was sufficient for the identification of one person but insufficient for the identification of others who were close to and with that person, I find impossible to accept. This is particularly so in relation to the present of Arnold Abba, a person known to PW 1. If Arnold Abba was present, and despite my rejection of his evidence as untruthful and unreliable, I find that he was present, then I can find no reason why PW 1 would not have seen him.

(38) I find it to be more likely that the reason PW 1 did not see him was that in the circumstances of the tension and fear of being under attack as the deceased was and as PW 1 was later to become, too much was occurring in the poor light for reliable identifications to be made. In my judgment, that is why PW 1 was not able to say that the accused's son was present.

(39) Of course that must raise the question again of the reliability of PW 1's identification of the accused. I do not mean by this whether or not the accused was present at all that night, for I find as a fact that he was. I also find as fact that the fight had not concluded when the accused arrived. I accept the evidence of PW 6 when he says that it was the accused who was holding the deceased and forcefully expelling him from the compound. But the issue here is not whether he expelled the deceased, but whether he struck him with a piece of timber.

(40) PW1's evidence was that the whole group attacked the deceased in circumstances where the available lighting, whatever its source, was very poor. I reject his evidence that it was not possible for anyone else to be armed with pieces of timber and find that he simply did not see the several others who were armed. In those circumstances there was certainly the possibility that one of the several other persons present armed and fighting struck the fatal blow or blows. While I find that the accused was present during some of the fight, I cannot be satisfied that it was he who struck the fatal blow or indeed any blow with a piece of wood.

(41) As a result of these findings of fact, I cannot be satisfied beyond reasonable doubt that the Crown have proven that it was the accused who struck the fatal blow or blows. On the basis of the way in which the Crown opened its case and also close to present its case, namely that the accused was the sole assailant using a piece of timber to strike the fatal blow, the accused must be acquitted.

The grounds of appeal

11. The amended grounds of appeal read:
    
    1. That the learned trial Judges erred in law when he failed to acknowledge and consider the principal and distinct value of recognition evidence, and take account of and give due weight to recognition evidence of the Crown;
       
    2. That the learned trial Judge erred in law when, in light of the prosecution case, he failed to direct himself at all according to Turnbull guidelines and examine closely the circumstances in which the identification was made, especially evidence relating to the cover of light in the particular area where the respondent was identified and was observed to have struck the deceased;
       
    3. That the learned trial Judge erred in law when he found that the Crown had failed to prove beyond reasonable doubt that the respondent had struck the deceased on the back, and acquitted the respondent without accepting and applying the principle that the respondent could have merely contributed to the death of the deceased on the available evidence, and without giving proper and due consideration to all the evidence produced at the trial.
       

12. Frankly, the amended grounds make plain that this is an attack on the factual findings of the Judge, simply dressed up as errors of law.

The submissions
13. The appellant's complaint under ground 1 is that the Judge failed to give effect to the decision in R v Turnbull (1977) QB 224, and also Beckford v The Queen (1992) 97 Cr App R 409, where the Court stated in a well-known passage at 415:

The first question for the jury is whether the witness is honest. If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely, is he right or could he be mistaken?

14. In his submissions Mr Naigulevu conveniently summarised the Crown's position by making 3 points. Firstly, that the judge should have given a much more precise and stronger Turnbull direction to himself on identification.Secondly, that the judge failed to consider all of the evidence dealing with identification (R v Reid (1990) 1 AC 363 at 382). The appellant submitted the judge failed to mention that PW 1 was known to the deceased and he failed to specially rule on the question of lighting. Finally, that the judge should have inferred the deceased was struck outside the compound because this is where PW 1 said the best light was and he was able to identify the accused there. Mr Naigulevu also responsibly conceded, that if we accepted the blow with a stick was struck inside the compound his submissions faced difficulty. But he submitted it was clear on the evidence that the blow was struck by the deceased outside the compound.

15. In their excellent submissions, the respondent highlights what has been said above – that these were an attack on the factual findings of the Judge dressed up as points of law. The respondent points out, correctly, that at [20] of the verdict, without mention of Turnbull, the Judge took into account the issue of identification and properly considered all the surrounding circumstances and evidence, including the quality and source of light and other matters.

16. In relation to ground 2 the respondent points to Cross on Evidence (3rded) page 67: "The warning depends on the circumstances of each case, and no set formula need to be followed", and submits that his Lordship clearly directed himself to Turnbull matters.

17. As to ground 3, in particular there is a reference to the evidence of PW 6 at (35), "In cross-examination he agreed that when the accused the deceased they were not then fighting," It is submitted there was no fault, because the trial Judge correctly applied the law in respect of the two grounds. It is submitted that s 207(d) and (e) have no application given the trial Judge's finding that, while the respondent was present during some of the fight, the Judge was not satisfied he struck the fatal, or indeed any blow, with a piece of wood. It is submitted that for s 207 to apply, the trial Judge would have had to have found that an act or omission of the respondent was deemed to have accused the immediate or the whole cause of death of the deceased. Given the factual finding, that must fail. The respondent also rejects the reliance on s 22 on the basis that the Crown did not open on that basis, did not lead evidence in relation to it, and did not address it in their closing submissions.

Decision
18. We have to say we find the Judge's reasoning exemplary, and this appeal to be totally without merit. We think the structure adopted by the Judge in his verdict was sensible one.

19. In his careful analysis of the facts, the Judge first reviewed the respondent's evidence, the crucial evidence of PW 1, and the balance of the prosecution witness. He was not satisfied beyond reasonable doubt that the Crown had established that the respondent struck the appellant on the head with a stick, or indeed struck him at all.

20. It is to be noted that this case was never presented by the prosecution on the basis of a joint enterprise, and no evidence was adduced by the prosecution on this topic. They did not open or close their case on that basis.

21. In both their opening and closing, the Crown submitted that the sole issue was one of identification. Indeed, it is common ground the only defence advanced was identification. Although not specifically mentioning Turnbull and Beckford, the Judge clearly had both those case in mind when he analysed the only identification of the respondent which came from the witness, PW 1. He does not appear to have found him a dishonest witness, but makes plain in the passage cited above at (10) that in the circumstances of what was requiring in poor light, it was impossible for reliable identification to be made. We concur totally with the Judge's analysis of PW1's evidence, and his findings in relation to it. On the evidence contained in the transcript, we think it inevitable that a trial Judge would conclude the identification was unreliable.

22. We will approach the appellant's three points (14) above in reverse order. We invited Mr Naigulevu to point us to any direct evidence from PW 1 that the blow occurred outside the compound. He was unable to do so but said the proven facts allow such an inference. This is wrong. At page 113 of the Appeal Record PW 1 in chief gave evidence of seeing the deceased being struck and immediately falling down. He said others were kicking him. He then said the deceased was kicked by others then got up again. Crucially he then said "After he stood up it was me that went inside, I went and grabbed him let's go home. Q: And what did he say-what happened? A: When I went inside it was then- that they threw rocks at me Q: Then what did you do? A: I struggled to pull him but because of his weight and I was also being – they threw rocks at me so I left and I went back to the gate".

23. This is clear evidence that even PW 1 accepted the fight and the blow were in the compound and he went in to try and get the deceased to leave. The Crown submission is inevitably rejected.

24. We are satisfied the judge considered all the evidence relating to identification. We have no doubt the judge was conscious that the accused was known to PW 1. It was in the evidence and the Crown closing. It is not necessary for a judge, sitting as judge and jury, to mention every piece of evidence adduced. We accept there is authority that where a witness knows a person a judge or jury may be more confident of identification. In any event even in such a situation identification remains dependant on the circumstances. Here the judge carefully considered all of the circumstances in rejecting PW1's identification evidence. In the passage above the judge reviewed the lighting evidence and reached no conclusion on it. He did not need to as the evidence places the incident in the compound where it was common ground the light was poor.

25. As to the last point if a stronger Turnbull direction sought by Mr Naigulevu had been given it simply would have made the unreliability on PW 1's identification evidence even more graphic. The passage from the verdict at (10) above makes clear that the judge was alive to the Turnbull caution. As we have noted no particular form of direction is required. All that is necessary is that the verdict makes it plain that the adjudicator is alive to the necessary principles. The judge was. In particular we note that despite his proximity to those in the compound PW 1 failed to identify anyone other than the respondent. This included the respondent's son whom he admitted he knew. We also note much of his evidence was contradicted by other witnesses whose evidence on critical matters the judge accepted.

26. We will briefly deal with the matters contained in ground 3 of the Amended Notice of Appeal. Given the Judge's finding that the Crown had not satisfied him beyond reasonable doubt that the respondent struck a fatal blow or any blow, the reliance on s 207 and 22 of the Penal Code does not assist the Crown. It was inevitable that a conclusion would be reached that the Crown had failed to prove to the requisite standard that the respondent struck the fatal blow or any blow. That is the simple answer to ground 3. The reference to s 22 relating to joint enterprise was never part of the Crown's case and must be rejected.

27. We remind the Crown that they have a significant onus when contemplating bringing appeals against acquittal, and should only do so when there is in fact a point of law worthy of challenge.

Williams JA
Member of the Court of Appeal

Hansen JA
Member of the Court of Appeal

Wilson JA
Member of the Court of Appeal