Adifaka v Director of Public Prosecutions [1984] SBHC 7; [1984] SILR 44 (4 September 1984)

[1984] SILR 44

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 17 of 1984

ADIFAKA

v

DIRECTOR OF PUBLIC PROSECUTIONS

High Court of Solomon Islands
(Sir John White ACJ)
Criminal Appeal Case No. 17 of 1984

29 August at Honiara
Judgment 4 September 1984

Corroboration - accomplice - conflicting accounts in same witness’s evidence - principles to be applied.

(For direction on burden and standard of proof, see now DPP v Haikiu [1984] SILR 155 (CA)).

Sentence - disparity –“real and genuine grievance” - relevant considerations.

Facts:

The appellant Adifaka and one Sifonabo were charged together with housebreaking and larceny (for stealing a safe containing $5000 from a dwelling-house). Sifonabo pled guilty, and was sentenced by a principal magistrate to 15 months’ imprisonment He appealed against sentence on the ground that he had been forced to take part by Adifaka, and had only received $20 for his services. Before Sifonabo’s appeal was heard (CRAC 15/84 unrep.), he was called on to give evidence against Adifaka during his trial before another principal magistrate. In giving evidence Sifonabo first claimed (contrary to his statement to the police) that only he had taken part in the house breaking. At the conclusion of Sifonabo’s evidence the magistrate warned him of the risk that his sentence might be increased if he persisted with his appeal. The next day Sifonabo returned to the witness-box at his own request and gave evidence against Adifaka in accordance with his statement. The magistrate accepted Sifonabo’s second account (implicating Adifaka) as being corroborated by another witness, convicted Adifaka and sentenced him to three years’ imprisonment. Adifaka appealed on the grounds that-

(1) the magistrate should not have relied on Sifonabo’s evidence, as one account contradicted the other;

(2) the magistrate should not have regarded the other witness’s evidence as corroborative of Sifonabo’s, since that was manifestly unreliable in itself.

(3) the magistrate failed to direct himself as to the burden and standard of proof.

He also submitted that the magistrate should not have warned Sifonabo of the likely effect of the evidence he had given on the result of his appeal, and he appealed against sentence on the ground of disparity with that passed on Sifonabo.

Held:

1. (following R -v- Kilbourne [1973] 2 WLR 254) per Lord Hailsham LC at p. 268.

Judges of fact should consider at the end of all the evidence whether that of a witness requiring corroboration is credible in itself, before going on to decide whether it is corroborated.

2. However in the present case the magistrate had made the essential findings of fact and drawn conclusions from them on which Adifaka was properly convicted.

3. The terms of the magistrate’s judgment showed that he had in mind the proper burden and standard of proof.

In the circumstances of the case, it was only fair to Sifonabo to warn him of the likely effect of his evidence on his appeal.

Appeal against conviction dismissed.

Appeal against sentence allowed: sentence reduced to 27 months’ imprisonment. (Sifonabo’s appeal against sentence was later dismissed).

Other cases considered:

R -v- Stone (1970) 54 Cr. App. R. 364
R -v- Hester [1972] 3 WLR 910
R -v- Golder [1960] 3 All ER 457
Magu -v- R. [1980-1981] SILR 40

Kenneth Brown, Public Solicitor, for Adifaka
Thomas Kama for the respondent

Sir John White ACJ: The appellant was charged in the Magistrate’s Court Central on 15 June 1984 with housebreaking and larceny in that he broke and entered a dwelling house and stole a safe containing $5000.00. He was found guilty and on conviction was sentenced to 3 years’ imprisonment. He has appealed against conviction and sentence.

The general ground of appeal against conviction is that the verdict is unsafe and unsatisfactory. More specifically the grounds were as follows -

1. The learned Magistrate relied erroneously on an accomplice who told conflicting stories in evidence.

2. The learned Magistrate erred in accepting a taxi driver’s evidence as corroborative of the alleged co-offender’s evidence which was manifestly unreliable in itself.

3. The learned Magistrate failed to direct himself as to the burden and standard of proof.

As to sentence the ground of appeal advanced was that the sentence was manifestly excessive having regard particularly to the sentence passed on a co-offender (one Sifonabo) for the same offence.

These grounds were fully developed by the Public Solicitor Mr Brown, in his argument on the appeal.

In a general submission Mr Brown also contended that having regard to the question of corroboration and the burden of proof the cumulative effect of the error was such that the proviso should not be applied.

Mr Brown then raised a point which is not included in the points of appeal but which I shall deal with as a relevant preliminary matter. He submitted that the learned Magistrate erred in warning Sifonabo, when he gave evidence in direct conflict with his statement to the police, which was the basis of his plea of guilty and conviction and sentence, that his sentence could be increased on appeal. Mr Brown said, that he had found no authority on the point.

For completeness, some guidance on the subject is to be found in R. v. Stone (1970) 54 Cr. App. Rep. 364, referred to in Archbold 40 Ed. para 401 a. It is stated on the authority of that case that a judge should never bring back an accused in order to increase his sentence where, in giving evidence against a co-accused after being sentenced originally, he fails to adhere to the account put forward on his behalf by way of mitigation and in effect changes his evidence. Here the position was that Sifonabo had appealed against sentence and it was in those circumstances that the warning was given in fairness to him. There can be no doubt, however, that in the circumstances of the present case the warning could have been the cause of Sifonabo returning to the witness box and returning to his first account of what took place. Accordingly that was an important consideration affecting the weight of Sifonabo’, evidence. This was not overlooked by the magistrate who accepted that it made Sifonabo’s second account “deeply unreliable but does not necessarily make it false”.

Mr Brown’s submission was that the second story should be regarded as the result of the warning regarding Sifonabo’s appeal and that no reliance whatever should have been placed upon it. It was then contended, on the basis that the Magistrate had found the evidence of the second story “deeply unreliable”, that there was a finding that the evidence was unreliable that a search for corroboration in the evidence of the taxi driver was wrong. This submission was based on the decisions of the House of Lords in R. v. Hester [1972] 3 WLR 910, 1972 3 All E.R. 1056 and R. v. Kilbourne [1973] 2 WLR 254, 1973 All E.R. 440.

In the latter case, at p. 267, the Lord Chancellor, Lord Hailsham, referred to the former case and said: -

“Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness’ testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise.”

Later, at p. 268, the Lord Chancellor went on to say: -

“Of course, the moment at which the jury must make up its mind is at the end of the case. They must look at the evidence as a whole before asking themselves whether the evidence of a given witness is credible in itself and whether, if otherwise credible it is corroborated.”

And he underlines the point in one further sentence:-

“Nevertheless corroboration is a doctrine applying to otherwise credible testimony and not to testimony incredible in itself”.

Mr Brown also cited R. v. Golder [1960] 3 All E.R. 457, in support of his submission that no reliance could be placed on Sifonabo’s evidence. In that case the LCJ Lord Parker, said, at p. 459:-

“In the judgment of this Court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence on which they can act.”

It will be seen that the position in the present case is different because the witness was not only shown to have made previous statements inconsistent with his first story at the trial. He had returned to the witness box and given a second account consistent with his previous statement to the police and in direct conflict with his previous evidence at Adifaka’s trial.

Applying the principles, stated by Lord Hailsham, the first question to be answered at the close of the evidence in the present case was whether the evidence - that is the second account given by Sifonabo - was credible in itself. To decide that a jury and in this case the Magistrate sitting alone, was required to look at the evidence as a whole.

It is clear that the Magistrate reviewed the evidence with care. He saw and heard Sifonabo and noted that he appear deeply evasive when telling the first story. He added that the witness had not looked “very happy” when giving the second account and that he had “strong personal motives for coming with it”. And it was noted that it corresponded with what Sifonabo had told the police. The Magistrate then considered the evidence of the taxi driver and the appellant, and the evidence of Tui and Hiki, who had seen the appellant and Sifonabo in the vicinity of the house. For reasons he sets out, which I need not repeat, he came to the conclusion that Sifonabo’s second account, and not the first, was to be preferred. In short the learned Magistrate did not conclude that Sifonabo’s second account was “incredible in itself”, using Lord Hailsham’s language, but that it was credible.

The Magistrate certainly considered corroboration, the correct question at that stage being, again using the Lord Chancellor’s words “whether if otherwise credible it (the evidence in question) is corroborated”. It is important to remember that the word “corroboration” by itself means no more than evidence tending to confirm other evidence. See Lord Hailsham in R. v. Kilbourne, at p. 263. And the Lord Chancellor went on to say, “In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and if believed, confirming it on the required particular is capable of being corroboration of that evidence, and, when believed, is in fact such corroboration.”

The Magistrate’s conclusion was that, if there was any corroboration in the prosecution case, it was to be found in the evidence of Tara Asumae (the taxi driver). He weighed that evidence with care and came to the conclusion that it was reliable evidence. In my opinion there can be no doubt that the taxi driver’s evidence, if accepted, as it was, was corroborative of Sifonabo’s second account and the Magistrate so found.

It is true that the learned Magistrate did not follow the steps I have followed after having had the advantage of hearing argument and reading and applying the judgments of the House of Lords. My review of his reasons for judgment, however, Shows, in my opinion, that the essential findings of fact have been made, including his conclusions on the evidence given by the appellant, which he found to be false. In the result the learned Magistrate after considering all the relevant evidence, found that Sifonabo’s second account, given in the witness box, was credible, and he further held that there was evidence corroborating that evidence. Clearly he weighed the evidence with great care, his view, being, as already noted, that Sifonabo’s evidence was “deeply unreliable” but “not necessarily false”.

I turn now to the third ground of appeal, that the learned Magistrate “failed to direct himself as to the burden of proof”.

Mr Brown referred to the decision of this Court in Haikiu v. R. Cr. App. Case No.8 of 1984, and fairly said that the position in the present case was not as clear as in Haikiu’s case. He pointed out that while there was no-reference in the Magistrate’s judgment in the present case to the burden and standard of proof in a criminal case he had said at page 9; “But I am quite sure that the housebreaking was planned and directed by Adifaka from the first”.

In Haikiu’s case the learned Commissioner, having drawn attention to the authorities which “make it clear that the failure by a trial judge to direct a jury as to both the burden and standard of proof is a material misdirection”, pointed out that the trial in that case was before “an experienced professional magistrate sitting without jury or assessors”. I agree with the observation of the Commissioner that a magistrate would be “well aware of the principles he had to apply” before he found Haikiu guilty. In that case the Commissioner considered that the record did not disclose that the Magistrate had applied the required burden and standard of proof. As Mr Kama pointed out the Commissioner also took into account another ground of appeal, that in cross examining the appellant the Magistrate “gave the appearance of partiality”. The Commissioner concluded that having regard to these matters the conviction must be set aside. In view of the conclusion I have reached, and that an appeal has been filed, it is unnecessary and undesirable to make any further comment in Haikiu’s case. In the present case I consider the position is different. The passage in the judgment to which Mr Brown referred, and which I have quoted, and the judgment as a whole, leave me in no doubt that the learned Magistrate applied the burden and standard of proof.

For the reasons I have given I am satisfied that the appellant was properly convicted and that the appeal against conviction must be dismissed.

Finally, as to sentence, the ground of appeal was that the sentence of three years’ imprisonment was manifestly excessive, having regard particularly to the sentence passed on the appellant’s co offender, Sifonabo.

Mr Brown accepted, very properly, that not all disparities in sentence result in reductions and that it was necessary to show that the disparity was such as to justify “a real and genuine grievance.” The principles are stated by the Court of Appeal in Magu v. R. [1980-1981] SILR 40, 42.

The Magistrate in the present case, who was aware of the sentence imposed on Sifonabo, and commented that, with respect, he considered it appropriate, then sentenced the appellant to 3 years’ imprisonment.

In considering disparity of sentence in the present case I take into account that I also heard and reserved my decision in Sifonabo’s appeal against a sentence of 15 months imprisonment imposed by a different magistrate. The question is whether the discrimination in favour of the co offender Sifonabo should be regarded as excessive.

Bearing in mind the salutary provisions of S. 21 of the Penal Code, making all persons who take part in offences as there stated guilty of the offence committed, it is necessary to examine “the relevant considerations affecting the individual appellant”, the general rule being that where two or more offenders are concerned in the same offence a proper relationship should be established between the sentences passed on each offender - see Thomas - Principles of Sentencing 2nd Ed. p.71. Having heard the arguments on appeal and considered the judgments appealed from I have some advantages the Magistrate did not have in considering whether the substantial discrimination in favour of Sifonabo should be regarded as excessive in the circumstances. I have come to the conclusion that it is excessive bearing in mind the relevant considerations. They are the plea of guilty, cooperation with the police, the difference in age, and the conclusion, with which I respectfully agree, that the Appellant was the initiator in carrying out the burglary and larceny, but on the other hand Sifonabo was an adult fully involved in all the active stages of the offence. In the circumstances I consider the difference in culpability was not as marked as the disparity in sentences suggests. On the basis that the disparity was such as to justify “a real and genuine grievance” I propose to vary the sentence by reducing the term by nine months. To that extent the appeal is allowed, the sentence is set aside and in lieu thereof a sentence of two years’ and three months imprisonment is imposed.