Bosa v Regina [2015] SBCA 21; SICOA-CRAC 44 of 2015 (9 October 2015)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Pallaras PJ)
COURT FILE NUMBER:	Criminal Appeal Case No. 44 of 2015 (On Appeal from High Court Criminal Case No. 158 2013)
DATE OF HEARING:	06 October 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	Gideon Bosa - V - REGINA
ADVOCATES: Appellant: Respondent:	B Etomea R Olutimayin
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 6

JUDGMENT OF THE COURT

1. This appellant was charged with murder contrary to section 200 of the Penal Code. It was alleged that he murdered George Warren Casper at Simba village on Guadalcanal on 10 November 2012. The appellant pleaded not guilty, was tried and convicted.
   
2. The victim received a number of injuries and there is no dispute that the cause of death was loss of blood from a deep cut to his leg. The prosecution case was that the injury was caused during a fight between the deceased and another man against the appellant and two others. At the outset of the trial, the prosecution put the case in two ways; that the accused personally inflicted the fatal wound and, alternatively, that he took part in a joint criminal enterprise with his two companions during which the deceased received the wound.
   
3. The prosecution called two witnesses. It was clear that there was no evidence that the appellant was the person who actually inflicted the fatal wound and the learned judge found that the first limb of the prosecution case failed. The appellant gave no evidence and called no witnesses.
   
4. The two prosecution witnesses were husband and wife living in the village of Simba. The next village, Siera, is very close and within calling distance. It was common knowledge in both villages that the deceased had a deep sense of grievance against members of both villages because he felt that a water tank had been unfairly removed from his house a few days previously and taken to the adjacent village. His anger extended to various members of both villages.
   
5. In the afternoon of 10 November 2012, the first prosecution witness, the husband, was discussing the water tanks issue with another Simba man when he saw the deceased, who appeared to have been drinking and was carrying a knife, arrive at the village. He was shouting about the water tank and wanted to go to Siera to resolve the issue.
   
6. His words were clearly heard in Siera and a man named Donald shouted back. The witness then described seeing three men from Siera running to Simba one after the other in a line led by the same Donald. Both he and the second man were armed with knives and stones. Last in the line was the appellant carrying a stick, about two thirds of a metre long, and stones.
   
7. Once the men reached Simba, a fight took place between the five men during which the deceased, his brother and the appellant were wounded. When it ended, the witness carried the deceased to a nearby house but he died on the way.
   
8. The wife of the first witness also described the initial arrival of the deceased. She described how he was very angry and accused her husband of siding with the villagers of Siera. She, too, heard the shouted exchange with Donald and related how that was followed by the three men walking from Siera in a group. She told the Court that all three were armed with knives and stones and were swinging their knives as they approached. They started arguing with the deceased and the fight started almost immediately between the three men and the deceased and his brother. All were using knives.
   
9. The learned trial judge found the wife truthful and a far more cogent and reliable witness that her husband and, where there were discrepancies between them, accepted her account.
   
10. Having considered all the evidence, the judge concluded that:
    

"... the only reasonable inference to be drawn is that these three men entered the village jointly to, at least, assault the deceased with the weapons that they had brought with them. They had armed themselves with knives and stones in order to use them against the deceased.

It may be that the plan was simply to fight with the deceased, assault and injure him but not to kill him. The question then arises as to whether the accused knew or ought to have known that the killing of the deceased was a probable consequence of carrying out the common purpose of assaulting the deceased. In my judgment, the answer to this question must be yes. Indeed when men arm themselves with such deadly weapons and attack each other, it would seem almost inevitable that a death will occur."

11. Having referred to the conflict of evidence whether or not the appellant had a knife, he continued:
    

"Even if I accepted the defence claim that the accused was not armed with a knife, which I do not, he must have seen that his two companions were both armed with knives and nevertheless joined them in the joint enterprise. He knew or ought to have known that those knives were going to be used on the deceased and must have realised that the death of the deceased would be a probable consequence of their actions. He nevertheless continued in the joint enterprise and actively engaged in the fight which led to the death of the deceased.

As a result of these findings, the only conclusion open is that the prosecution has proven their case beyond reasonable doubt on the basis that-

- the accused formed a common intention with others to carry out an unlawful purpose

- the accused and the others did acts in furtherance of the common unlawful purpose

- during the carrying out of that common and unlawful purpose, a further offence was committed and

- the further offence was a probable consequence of carrying out that unlawful purpose."

12. The original notice of appeal contained seven grounds. The majority involved issues of fact alone or of mixed law and fact and, by section 20(b) of the Court of Appeal Act, required leave. No application was made for such leave and, having heard counsel, we declined to give leave on the basis that they amounted, in total, to a challenge of the trial judge's findings of fact.
    
13. The remaining ground is that the judge "erred in law in applying section 22 of the Penal Code to the requirements under section 200 for a murder charge on the following grounds, namely:
    

1. there are no other persons charged as co-accused together with the accused to give rise to the question of a common purpose;

2. the application of section 22 clashes with the principle of individuals acting in self defence for the purpose of protecting their community against the unlawful attack of the deceased and his brother at the material time

3. in light of clear evidence pointing to only one of the persons involved in the fight ensuing in the death of the deceased inflicting the fatal wound.

14. All three sub grounds relate to the application and effect of section 22 which provides:
    

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 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.

15. The judge set out the terms of that section and explained:
    

"In this case the accused can only be held responsible to the death of the deceased if it can be said that he knew or ought to have known that the killing would be a probable consequence arising from the carrying out of the unlawful purpose."

Sub-ground 1

16. It is clear that the evidence before the court was of a fight involving five men. Of those, the three men from Siera were the attackers and the deceased and one other were determined to resist their attack. The appellant was also cut in the course of the fight and was taken to hospital and then arrested and charged. At the time of the trial, no one else had been arrested or charged and so the appellant was the only defendant before the court,
    
17. Counsel for the appellant submits that, as the prosecution case was that this attack was a joint enterprise, the appellant could only be convicted if the others in the joint enterprise were also charged and tried at the same time.
    
18. Unfortunately, that is a misconception of the law. It is plainly preferable if all co-accused are tried together but it is not uncommon for one of the co-accused to avoid arrest for some time and often, therefore, until the other has been tried. In a case such at this where only one of the alleged co-accused is before the court, the issue for determination will include whether the evidence is sufficient to prove that the man before the court acted jointly with the missing man or men. In the present case, the evidence accepted by the judge clearly showed such was the case. (Counsel for the Crown advised this Court from the bar table that another of the three men from Siera has now been arrested and will be tried.)
    
19. There is no merit in the first sub-ground and it is dismissed.
    

Sub-ground 2

20. The issue of self defence or defence of the community was not raised in the trial and the judge did not deal with it. Counsel did not advise this Court at the hearing which part of the law extended the defence of self defence to acts solely to protect the community. Section 17 of the Penal Code provides:
    

Subject to any express provisions of his Code or any other law in operation in Solomon Islands, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.

21. Numerous authorities in Solomon Islands have specifically adopted the principles of the common law. We do not need to repeat them. The classic exposition is that by Lord Morris of Borth-v-Gest in Palmer v R [1970] UKPC 2; [1971] 55 CrAppR 223, 242. It allows such force as is reasonable and proportionate, in the circumstances of the case, for self defence or defence of relatives or dependents.
    
22. In the present case, the prosecution evidence was that these three men, armed with knives, advanced on the deceased and his brother and attacked them. We fail to see how that evidence could possibly fit any form of defence and we reject the submission.
    

Sub-ground 3

23. As set out above, the prosecution initially presented its case on two limbs; either that the accused actually inflicted the fatal wound or that it was inflicted by one of the three men in a joint attack. The judge correctly found that there was no evidence to support the first limb and the case proceeded on the basis of joint enterprise.
    
24. In such a case, the test is not whether the prosecution has proved which person inflicted the wound if, as was found by the judge, the evidence proved the fatal injury was the result of a joint enterprise to commit an unlawful assault which included the probable consequence of such an injury occurring during its commission.
    
25. Section 22 is clear. The necessary elements (described a "crucial" by Palmer J in R v Tadakusu [1999] SBHC 108) have been repeated in numerous cases. In the case of Luavex v R [2007] SBCA 13, this Court explained:
    

"Section 22 deems each of two or more persons to have committed an offence of which the commission is of such a nature as to be a probable consequence of prosecuting a common purpose together. Under section 22 the purpose must be one that is "unlawful", and its commission must result from forming a common intention to prosecute it in conjunction with one another. ...To the extent that a question of "purpose" is involved, section 22 is subjective in its operation: it depends on formation of an actual intention or purpose to do something unlawful. Otherwise it is objective: Stuart v The Queen [1974] 134 CLR 420,437, in particular, whether or not the offence committed is of such a nature as to be a probable consequence of carrying out or prosecuting the common purpose depends not on what the parties themselves in fact foresaw or contemplated, but on whether or not it was such a consequence. ... The High Court of Australia has held ...that a probable consequence means one that "might well happen"; Darkan v The Queen [2006] 80 ALJR (Part 8).

26. The judge correctly directed himself on the ingredients of the offence which the prosecution had to prove to the criminal standard in a case of joint enterprise and applied them to the evidence. We have set out above the relevant passages of his reasons and his conclusions as to the evidence of the appellant's actions and awareness of the probable consequences of an attack by men, all, as he accepted on the evidence before him, armed with knives.
    
27. We are satisfied that he carefully and properly evaluated the evidence. On the basis of his conclusions, he applied the correct tests for a case of joint enterprise and the accused was correctly convicted.
    
28. The appeal is dismissed and the conviction confirmed. In view of the mandatory penalty for murder, there is no appeal against sentence.
    

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward JA
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal