Alagere v Reginam [2015] SBCA 22; SICOA-CRAC 7 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 (Palmer, CJ.)
COURT FILE NUMBER:	Criminal Appeal Case No. 7 of 2015 (On Appeal from High Court Criminal Case No. 203 of 2013)
DATE OF HEARING:	29 September 2015
DATE OF JUDGMENT:	09 October 2015
THE COURT:	Goldsbrough P Ward JA Lunabek JA
PARTIES:	Brian Schophield Baro Alagere - V – Reginam
ADVOCATES: Appellant: Respondent:	H Lawry R Olutimayin
KEY WORDS:	Circumstantial Evidence, available inferences. Evidence Act 2009
EX TEMPORE/RESERVED:	Reserved
ALLOWED/DISMISSED	Appeal Allowed
PAGES	1-8

JUDGMENT OF THE COURT

1. Brian Schophield Baro Alagere, the Appellant, was convicted after trial of the murder of Flora Hangari Akwai. The trial took place over a number of weeks beginning in January 2015 and a conviction recorded on 26th February 2015. A sentence of life imprisonment was imposed with a recommendation of a minimum non parole period of twenty five years. It is against this conviction and sentence that the Appellant now appeals.
   
2. The decomposed body of Flora Akwai was found on or around 9 October 2012. Given the rate of decomposition the remains were mostly skeletal. Identification was problematic in the circumstances and reliance was placed on clothes found on or near the body. There will be reference again to those clothes later in the judgment on the appeal
   
3. It was the case for the prosecution that the Appellant, with whom the deceased had a relationship, killed her before rolling her body down Tuvaruhu hill. The Appellant, on the other hand, blamed a prosecution witness, who gave evidence in the trial, for the death. Within the case for the prosecution there was no direct evidence of any assault by the Appellant on the deceased other than evidence from one prosecution witness of a stab to the chest. There was no medical evidence to support that stab wound, perhaps not surprisingly given the state of decomposition. Surprisingly, though, nor was there evidence presented in the trial of the stab through the perspective of the deceased’s clothing.
   
4. The grounds of appeal are four in total. Ground four, in relation to the medical evidence, was not pressed on this appeal save to the extent that the ground involved the making of inferences. Grounds one and two relate to the admission of hearsay evidence and ground three concerns the drawing of inferences by the trial judge based on what the Appellant submits is both admissible and inadmissible evidence.
   
5. The hearsay complained of falls into two categories. The first to be dealt with in this judgment is the telecommunication evidence. The second category is what the Appellant submits is propensity evidence. Both categories of evidence are provided for in the Evidence Act 2009.
   

Telecommunication evidence

6. During the trial an exhibit was entered on Day 8 beginning at page 4 of the Appeal Book called Exhibit Q and ending at page 8. That exhibit comprised two pages of details of telephone calls made on the deceased’s mobile handset, provided by her telephone service provider to the witness Roscal who was the investigating police officer in the case. No-one from the service provider was called to give evidence or to introduce the telephone records into the evidence on the trial. Equally no objection was taken by the defence to the introduction of the exhibit through this particular witness.
   
7. Whether or not the defence in a trial takes exception to the introduction of a particular exhibit during a trial, it should not be admitted if it contains inadmissible material. In this instance it comprised material that was not per se inadmissible. It comprised business records of the telephone service provider and could have properly been introduced by the record owner in accordance with relevant provisions of the Evidence Act (see exceptions to the rule against hearsay at section 120). Given its nature it could also have been admitted by consent under section 21 of the Evidence Act 2009. That suggestion is supported by the use made by the defence during the trial of the information contained in the document.
   
8. The proper way, in our view, for the material to have been introduced in the trial was for a representative of the mobile service provider to have given evidence, either through an agreed statement producing the records or, if necessary, by giving evidence. Whilst the point was not taken at trial, and the trial judge cannot therefore be legitimately criticized for it, the advantage of the latter course, with the benefit of hindsight, would be to have answered some of the questions about the telephone calls which remain unanswered. It may, for example, have been possible to identify calls made although not answered. Counsel for the Appellant agrees that none of these issues were canvassed at trial and so for the purposes of this appeal they are not relevant. For the purposes of admission of telephone records in future it might be useful if both these remarks and the remarks of the trial judge on telephone records are further considered.
   
9. Given the circumstances of the admission of the telephone records into this trial, we do not consider that, on this question alone, an appeal would have been successful. The records were introduced in a manner less than optimal but the reliance placed on them by both parties to the case could well have given the trial judge the impression that the record was introduced by consent. If objection had been taken at the time, appropriate steps could have been taken to introduce them. Nothing turns on this point.
   
10. Further evidence connected to telephone calls came in the form of voice identification. The mother of the deceased was called and testified that she recognized the voice of the Appellant during a telephone call. Similarly the sister of the deceased gave evidence and she testified to recognizing the voice of the accused as she overheard her sister talking to him earlier in the same evening. None of that evidence was introduced applying the caveat found in section 86 of the Evidence Act which provides that voice evidence is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made were likely to have produced a reliable identification.
    
11. Again no point was taken during the trial by counsel for the Appellant. It may well be that the prosecution could have discharged the burden on this issue but it appears not to have been addressed by the prosecution or the defence or considered as an issue by the Court. That is regrettable.
    
12. Finally in the category of telephone records came two text messages received by the father of the deceased. These messages fall in a different category in that it is more important to consider not the admission of the message but the inferences made by the learned trial judge in considering those messages. For that reason it is dealt with later in this judgment.
    

Propensity evidence

13. Another category of evidence admitted without issue being taken or application made is propensity evidence. Reference was made in the opening address to this evidence and it was admitted without consideration of the relevant test. Again there appears to be little if any objection taken by counsel for the Appellant at trial. During the hearing of this appeal counsel for the prosecution sought to persuade this Court that the evidence was adduced not to show propensity but to explain only why the parents of the deceased did not approve of the relationship between their daughter and her boyfriend, the Appellant.
    
14. With respect to the prosecution we do not accept that argument. If it’s only purpose was to demonstrate a reason why the parents did not approve of the relationship between their daughter and the Appellant then the evidence of his behaviour towards their daughter during the relationship (for that is what the evidence suggested, that the relationship was an abusive relationship) was itself inadmissible on the grounds of relevance. What the parents thought or did not think about the ongoing relationship could not in any way assist the tribunal in determining whether the Appellant committed this crime.
    
15. If the prosecution seek to admit propensity evidence it may only be admitted where its probative value in relation to an issue in dispute in the proceedings outweighs the risk that the evidence may have an unfairly prejudicial effect. That decision must be made by the Court and not by the Prosecution. If it is in issue submissions on it must be made and a determination to admit or exclude it should be made by the Court. Whilst no procedure is laid down for that to happen what must be taken into account is set out in section 80 of the Evidence Act. For convenience we set out what the section provides:-
    

“80. (1)The prosecution may offer propensity evidence about an accused in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on an accused.

(2) When assessing the probative value of propensity evidence, the court must take into account the nature of the issue in dispute.

(3) When assessing the probative value of propensity evidence, the court may consider, among other matters, the following –

(a) the frequency with which the acts, omissions, events or circumstances which are the subject of the evidence have occurred;

(b) the connection in time between the acts, omissions, events or circumstances which are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which an accused is being tried;

(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which an accused is being tried;

(d) the number of persons making allegations against an accused that are the same as, or similar to, the subject of the offence for which an accused is being tried;

(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility;

(f) the extent to which the acts, omissions, events or circumstances which are the subject of the evidence and the acts, omissions, events or circumstances which constitute the offence for which an accused is being tried are unusual.

(4) When assessing the prejudicial effect of evidence on an accused, the court must consider, among any other matters –

(a) whether the evidence is likely to unfairly predispose the fact-finder against an accused; and

(b) whether the fact-finder will tend to give disproportionate weight, in reaching a verdict, to evidence of other acts or omissions.

16. Until that decision has been made, the evidence is inadmissible. It cannot therefore, in our view, properly be referred to in an opening address unless the decision to permit its admission has been made prior to that address. If it is intended to ask for a determination on admissibility during the trial but after the opening address has been delivered reference to it must be removed from the opening address. Otherwise unless it is to be the subject of admission by consent it should not form part of the opening address. It was neither admitted by consent nor the subject of an advance ruling in this case when it did form part of the opening address from counsel for the prosecution. That we regard as an error.
    
17. Equally we regard admission of the evidence without due consideration of the applicable test as an error during the trial. The evidence was received on days 5 and 7 of the trial appearing in the Appeal Book at Day 5 page 7 and Day 7 page 14-5, 27-8, and 38-40. Whilst the prosecution assert that it was necessary to lead the evidence in the light of the nature of the case, since the Appellant was suggesting that the offence was committed by someone other than him (a prosecution witness) no doubt the purpose behind the evidence was to demonstrate that the Appellant (and not the witness) had a motive to kill the deceased.
    
18. Section 181 of the Evidence Act provides that where a decision is necessary to determine admissibility the matter should be regarded as a preliminary question. The section does not continue to prescribe how or when preliminary questions are to be determined but it must be the case that the question to be answered must be answered prior to the reception into evidence of the material the subject of the determination. In this case whatever the merits or otherwise of the evidence sought to be admitted, no determination was ever sought or made. In those circumstances even if the trial judge may have determined the question in the affirmative and allowed the evidence, because he was not asked to turn his mind to the question, the evidence was improperly led and introduced.
    

Inferences

19. We turn to consider the effect on the proceedings on the admission of that evidence. As the prosecution submit in their written submissions on this appeal at paragraph 3.8 on page 21 of submissions, the evidence was led to show that one (of the two men) had a motive and the other (man) did not. The telephone records were described by the trial judge as “crucial”. It is a sad reflection on affairs that such significant evidence was not properly brought, but nothing turns on this. Of the inference to be drawn from the text messages to the father of the deceased the trial judge, at paragraph 63 of his judgment concluded that the messages could not have been sent by anyone else other than the killer. The import of the messages to the father was that his daughter was still alive and that he should not be unduly concerned about her welfare or whereabouts. The trial judge found that the father had indeed been misled by the messages.
    
20. Whilst it was an illustrated fact that the messages were sent from the deceased’s handset and by inference were sent by someone then in possession of that handset, there is nothing to support the inference that only the killer could have sent the messages. The messages themselves did not contain information only known by the killer. The messages may have been designed to put the receiver ‘off the scent’ as it were but the only available inference there is that anyone involved in the death and hoping to avoid responsibility may have sent the message. The alternative suggested by the defence was rejected by the trial judge with a finding that the witness “would not have known the numbers of the deceased’s parents”. That inference or finding is not supported in any evidence.
    
21. Any discussion of the text messages is incomplete unless reference is made to the admission made by the accused in his record of interview about sending the second text message. Although it was sought to be excluded, after a voir dire the trial judge determined that the interview was admissible and so there was evidence properly before the court from the Appellant that he sent the second message. It is therefore not the finding that the Appellant sent the messages but the inference that only the killer could have sent the messages. It is that inference, coupled with the proper finding that the Appellant sent them, which is capable of demonstrating a flaw in the circumstantial evidence.
    
22. There is no direct evidence of the blunt force trauma described by the doctor as being the cause of death. The evidence from John the witness is only to seeing the Appellant stab the deceased, and there is no evidence that she died from the stab wound. The Appellant in his statement to the police described seeing John inflict the fatal blow or blows with a stone, but his account is equally consistent (if untrue) with either seeing John do that or doing it himself. So it is to circumstantial evidence that the trial judge turned to determine who killed the deceased. No evidence of the stab wound was found by the doctor, unsurprisingly given the state of the body but rather surprisingly the prosecution did not lead evidence of any puncture or tear in the deceased’s clothing recovered and used by the relatives to help identify the deceased.
    
23. At paragraph 77 of the judgment the trial judge finds that John would not have reported what he knew about the death to the police if he was the guilty party. He finds John’s actions in reporting the matter to the police “inconsistent with that of a guilty mind”. Whilst common sense may suggest this to be the case, there is no evidence to support that finding and it is not the only available inference. Then, at paragraph 80 the trial judge turns his mind to motive.
    
24. Acknowledging that motive is not a necessary element to the crime alleged, the trial judge describes evidence of motive as “a link in the chain of evidence”. Then, at paragraph 83 he says: - “I accept there is evidence of abuse in the relationship, satisfactory evidence being provided on this by the parents of the deceased, including (John).” He continues to set out the propensity evidence at the top of the final page of his judgment and concludes again describing parts of the evidence as being crucial.
    
25. It is that description of “crucial” to evidence that was not properly before him that leads us to the conclusion that the conviction must be quashed. Whilst inferences properly made on admissible evidence often form the basis of a conviction in the absence of direct evidence, those inferences must be based on admissible evidence and must be the only reasonable inference available in the circumstances. In this trial inferences have been made on evidence not properly admitted. In addition they are not always the only available inference.
    
26. It is important, in our view, where it is necessary to draw inferences that any inference made is made, firstly, on findings of facts resulting from evidence properly admitted. After the fact finding exercise then, in addition, any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say that there is no other inference available consistent with innocence. Anything less than this is no more than an educated guess. A useful discussion of the typical warning to the jury on this can be found at SHEPHERD v. THE QUEEN [1990] HCA 56 in particular in the judgment of Dawson where he said:-
    

“It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

Decision

27. The appeal is allowed and the conviction quashed. We make no order for a retrial of this matter. Given our finding on the conviction we do not intend to address the question of sentence.
    

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Justice Goldsbrough
President of the Court of Appeal

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Justice Ward J A
Member of the Court of Appeal

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Justice Lunabek JA
Member of the Court of Appeal