Piu v Regina [2005] SBHC 13; HCSI-CRAC 155 of 2005 (7 October 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 155 of 2005

ROSS PIU

-v-

REGINA

(Naqiolevu, J)

Hearing: 6^th June 2005
Judgment: 7^th October 2005

Mr. J Cauchi for the Crown
Ms. L Kershaw for the Appellant.

JUDGMENT

1. The appellant was convicted on two counts of Arson contrary to section 319 of the Penal Code, and was sentenced to serve a period of 3 years to be served concurrently. He appealed against conviction on the following grounds:-

(a) The conviction entered against the appellant is unsafe and unsatisfactory as it was made against the weight of evidence before the court.

(b) The learned Magistrate failed to warn herself in relation to the weaknesses of identification evidence generally as well as the specific weaknesses raised by the facts of this case.

(c) The learned Magistrate erred in finding that the Appellant was responsible as a party to a group which committed act of arson in the absence of any evidence sufficient to prove beyond reasonable doubt that such group had a common intention to commit arson.

(d) The learned Magistrate failed to consider significant inconsistencies between the prosecution witnesses' versions of events in particular inconsistent account of when the fires occurred.

(e) The learned Magistrate's rejection of the evidence of the co-accused's evidence that the Appellant was not present at the time of the incident was not based on evidence before the court and was illogical in view of her acceptance of the balance of the co-accused's evidence.

(f) The learned Magistrate erred in saying that the prosecution and defence appear to agree on the following:

- a group of men visited Bermuta on the Monday to demand compensation and so terrorised the villagers after that they fled to a nearby Bible College.

- The learned Magistrate took into account matters not relevant to the facts in issue.

2. Counsel for the appellant consider it appropriate to deal with grounds 1, 2 and 4 as they all concern the evidence before the lower court and the court evaluation of that evidence.

Counsel submit that the reason given by the learned Magistrate demonstrate an acceptance of all the evidence of the prosecution witnesses, without any evaluation of its reliability or credibility. Counsel said it must be noted that there was no direct evidence of who lit the fires as no prosecution witnesses gave evidence of seeing the fires being lit and seeing who lit them. The prosecution case was entirely dependent on circumstantial evidence and the prosecution asks the court to draw the inference from alleged sighting of flames that day and the men were responsible for lighting the fires in exercise of joint enterprise.

The Crown is response submit that identification is the issue in this trial. The prosecution witnesses in the record of interview identified the appellant as being present at the scene of the fires. There is no stark difference in the identification of the appellant.

GROUNDS OF APPEAL

There are 7 areas of grounds of appeal but they can be condensed into 3 main issues of concern. These are the issue of identification which has been conceded by both counsels for different reasons. The other important issue is the Common Intent of the group and the Circumstantial Evidence surrounding the case.

3. Presence of the Appellant at Bermuta Village

The appellant denied his presence at the village on the day the fire was lit and the houses burnt. This was also denied in his caution statement tendered by the prosecution. The appellant co-accused in his evidence admitted he attended the village but left before the fires were lit. He further gave evidence that the appellant was not present. However, this evidence was not accepted by the learned Magistrate. The Crown submits however that the Learned Magistrate had evaluated the evidence of the co-accused, and in this regard it should be disregarded.

4. Inconsistencies in Identification

The appellant was identified by prosecution witness, PW2, PW3, PW4 and PW6.

PW2 and PW3 are husband and wife who saw the appellant on the day in question together. It is clear from the judgment that PW2 the wife of PW3 state that she and her husband had gone to their garden and on the way back met a group of men. The appellant was there holding a gun, she recognised him as he is from the same area and she had seen him before. She had a conversation with the appellant who asked where Savo's House was, and she and her husband left shortly thereafter as she was scared. At the college she heard shooting and could see that houses were being burnt in the village at about 10.00 am.

Under cross-examination PW2 said that there were about 10 men, and they had black on their faces and were wearing custom clothes. PW3 the husband said he has lived at the village all his life. He is hard of hearing but heard her say to the appellant this is our place. He was concerned as the appellant was holding a gun and wearing army pants. He did not see who burnt the houses.

Under cross-examination he stated that he met the appellant on his road that leads to the village and he was standing close to the appellant whilst he was speaking to his wife PW2.

Clearly, there are some obvious inconsistencies between the evidence of PW2 and PW3. They had identified the appellant but gave totally different description in the way he was dressed, and who was with him at that time. The learned Magistrate in accepting their evidence did not warn herself of the weakness arising from the facts of this case.

5. PW5 and PW6

The appellant was identified by PW5 and PW6 which in essence is a dock identification. It is clear that PW5 was not asked whether he recognised or knew any of the people in the group. He simply pointed to the appellant and co-accused and said they were there at Bermuta village. No evidence was led as to subsequent identification of the appellant by the witness. The identification of PW6 was similarly conducted. The witness however was some 25 meters away from the appellant as he walked along the road and he only saw the left hand side of the peoples faces.

The Crown submit however that PW6 identified the accused and he said, "I know the appellant I saw him" The Crown further submits that no issue was put to the Magistrate as to the danger of identification.

In R-v-Turnbull & Others.¹ The court laid down certain principle that should govern eye witness identification:

1. The Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification.

2. The Jury should be instructed on the reasons for such warning and in particular it should be emphasised to them that a mistaken witness can be a convincing one and a number of witnesses can be mistaken when there is more than one witness.

3. The judge should point out to the jury facets of the case that has a bearing on the issue of identifications in particular whether the witness knew the accused how long at what distance in what light, was the observation impeded in any way had the witness seen the accused before, how often etc.

4. The jury should be reminded that mistake in recognition of close relatives or friends can be made.

It is very important that courts must apply this test when identification is a critical issue. The court of Appeal of the Solomon Islands has commented that the Turnbull Guidelines is appropriate for this jurisdiction. Kapi JA. ²

6. Evidence Concerning the Fire

There is clear inconsistencies in the prosecution evidence as to when the fires occurred. PW1 and PW5 gave evidence that the fire occurred at 2 pm. and PW2 and PW6 gave evidence that the fire occurred at 10:00 am. The co-accused in his sworn statement said he attended Bermuta with a group in the afternoon and after he left the group he saw flames coming from the village. The learned Magistrate in acquitting the co-accused accepted his evidence as reliable and credible and furthermore accepted the timing of the fire being in the afternoon. It appears that is consistent with the evidence of PW1 and PW5. Clearly, there is no definitive finding of fact on the time of the fires.

7. Common Intention to Commit

The learned Magistrate in convicting the accused of the charge stated:

"the court is satisfied that the defendant was an active part of the group, he was armed and clearly by this manner he and the group were not going to Bermuta on a peaceful visit." Whilst no one witness can point to the person or persons who lit the fires, the court views the offence as that committed in prosecution of a common purpose"

The learned Magistrate decision assumes that the group of men sighted at Bermuta was responsible for the burning of the house. There was no evidence before the court to prove beyond reasonable doubt that the group was responsible for the fires. The inconsistencies in the account given by the prosecution witnesses of the men they saw, the court could not have been satisfied there was only one group of men. The absence in a finding of fact as to the time of the fire make it impossible to make a determination as to who was responsible for the fire. The Crown however raised the point that PW6 had effectively put the appellant at the place where the fires were lit.

In R-v- Peter Fatali & Others, Muria CJ³ stated at p8.

"The existence of a joint enterprise must be established. Then it must be proved that the accused were all parties to the joint enterprise and that the act of the accused were done in furtherance of that joint enterprise or common purpose" underlining mine.

The appellant was convicted on the basis of having a common purpose to light fire in Bermuta village. The evidence against the appellant was that he was with a group of men and some were armed. There was no evidence of common intention having been formed against them to prosecute any unlawful purpose. The fact of holding a gun is not sufficient to warrant a finding of common purpose to prosecute an unlawful purpose.

8. Rejection of Co-Accused Evidence

The co-accused of the appellant gave evidence on oath that the appellant was not part of the group of men who went to Bermuta. The learned Magistrate stated that "The court believes he did not tell the truth, such as when he denied that Ross Piu was with the group that day." But there may be many reason for this lie, not the least that he and the appellant are in the same prison. There was no evidence that they were in communicating with the each other in prison on any evidence of family connection.

9. Circumstantial Evidence

The learned Magistrate had found the appellant guilty on circumstantial evidence. The learned Magistrate stated at page 24 of the Decision.

"The court is satisfied that the defendant was an active part of the group, he was armed and clearly by their manner, he and the group were not going to Bermuta on a peaceful visit. Whilst no one witness can point to the person or persons who lit the fires, the court views the offence as that committed in prosecution of a common purpose".

In arriving with this conclusion the learned Magistrate had taken into consideration the group of men sighted at Bermuta were responsible for the burning of the houses to which the appellant was alleged to be a part of. There was no evidence before the court to establish beyond reasonable doubt that the group were responsible for the fire. There clearly was no definitive finding of fact as to the timing of the fires and the absence of this finding of fact create a doubt as to the appellants participation in the offence. I am of the opinion that it would be difficult to make a finding of fact that a group seen at the area where the fire occurred at 10:00 am could be responsible for a fire that commenced at 2:00 pm in the afternoon. The mere opportunity is not in my view conclusive beyond reasonable doubt. It seems to me that all the evidence must be taken together to arrive at a conclusive finding of guilty beyond a reasonable doubt.

In R-v-Dudly Pongi ⁴... Muria CJ as he this [sic] was said,

"The prosecution case is substantially based on circumstantial evidence. As such the court must be very cautious when considering the case as prosecuted against the accused. It is the duty of the court in such cases to consider all the evidence together at the conclusion of the case ensuring that it can only draw an inference of guilty from the totality of the facts which are proved beyond reasonable doubt." underlining mine.

There is clearly inconsistencies in the prosecution evidence as to create in the mind of a reasonable tribunal that the prosecution has not made out a case beyond reasonable doubt.

CONCLUSION

The court having carefully considered the circumstances of this case the submission by the counsel for the appellant and the response by the Crown, is of the opinion that there are such marked inconsistencies in the evidence of the prosecution that a conviction could not stand. The court in all circumstances allow the appeal and quash the conviction of the two counts of Arson by the Magistrate Court of the 14^th day of March 2005.

ORDER OF THE COURT:

1. Appeal Allowed.

2. Quash the Conviction by the Magistrates Court of the 14^th March 2005.

3. Remit the case for Retrial to the Magistrates Court.

THE COURT

_________

¹ [1977] 1 QB 224
² DDP-v-John Fufue of Nelson Fafeloa (Unreported Criminal Appeal Nos 3 & 4 of 1988)
³ (Unreported Criminal Case No. 39 of 1992)
⁴ (Unreported) Criminal Case No. 40 of 1999