Regina v Iro [2005] SBHC 8; HCSI-CRC 325 of 2004 (12 July 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 325 of 2004

REGINA

-v-

PATRICK AUGA IRO, ALICK FEFELE, BASIL MAUTA FOATALA AND LILIO BABASI

(Goldsbrough, J)

Date of Hearing: 15^th – 28^th June 2005 & 4^th – 6^th July 2005
Date of Judgment: 12^th July 2005

Mr M McColm for the Prosecution
Mr C Baker for Patrick A Iro
Mr K Averre for Alick Fefele
Mr S Lawrence for Basil Mauta Foatala

JUDGMENT

(Goldsbrough, J): Patrick Iro, Alick Fefele and Basil Foatala are charged, on an information laid by the Director of Public Prosecutions, with robbery contrary to section 293 (1) (a) of the Penal Code. It is said that each of them, on or about 28^th August 2000 at Honiara in Guadalcanal Province, being armed with offensive weapons, did rob a person, namely Choylin Yim Douglas.

It is not necessarily part of the prosecution case that all three, or any of them, were armed with offensive weapons. The prosecution brings this case on the basis that it was a joint enterprise. The case can be amply summarised as it is stated in paragraph 13 of the final address from counsel for the prosecution: -

"The prosecution alleges that on the 28^th August 2000 at about 2 p.m. a group of men, including the defendants, arrived in Hilux vehicles at the Honiara Casino. A number of these men were armed. They forced their way into the casino, threatening staff with guns or other offensive weapons and made their way to an upstairs office, kicked the door open, confronted Choylin Yim Douglas who was counting money next to an open safe. Money was grabbed and the group including the defendants exited the Casino, leaving the area in vehicles. A total of $119,245 was taken from the casino. None of this money has ever been recovered".

The evidence for the prosecution came from eleven civilian witnesses and three police officers. The police officers, coming as they did some years after the event, were only involved to the extent of arresting cautioning and taking statements from the three accused. This is dealt with elsewhere.

Part of the prosecution evidence was videotape showing the event. It was shown to the court having been produced by the General Manager. The evidence of Harry Stewart, the General Manager is of assistance as to how the total amount of cash stolen was arrived at by the Casino staff. It also provides the link between the robbery and the surveillance video thereof. That video became an exhibit in the trial, but although it shows part of the scene of the robbery, it is not a sufficient part to permit any attempted identification of the robbers.

Mr. Stewart's evidence relating to the cash stolen suggests that he relied on other people to complete his calculations as to the missing figure. After his evidence, others were called to testify that they were the people responsible for providing Mr. Stewart with those necessary figures. This goes some way to show that the figure is accurate, but it is not sufficient to satisfy the court that the figure was indeed the amount stolen. No witness was asked as to the accuracy of the figures they provided, and no evidence was lead to suggest that the scene following the robbery was preserved with no possibility of further interference. Although reference was made to closing down the casino following this event, there is no evidence of how long this might have taken. Furthermore it appears that the figures provided show income to the casino and movement of money and chips throughout the building, but there is no separate provision or accounting shown relating to the wages that it seems were being prepared. There is evidence that the wages would have been around $30,000. Are wages part of the money described in the accounting documents? Was this money part of the missing money accounted for; was it additional missing money? There is no evidence to answer this, and so the court must determine that an unknown quantity of cash was stolen during this robbery by whoever committed the robbery. This is not a significant factor, however, in determining whether the robbery took place or who carried it out.

Redley Adaisi, a security officer at the Casino, recognised only two of the robbers. He identified them as Patrick (Iro) and Alick Fefele. They all come from North Malaita. In his evidence, Mr. Adaisi says that Patrick Iro was armed with a pistol. Later he said although he believed the man to be armed, he did not actually see any pistol. He said he believed it would be a gun because in his mind these people belonged to the Malaita Eagle Force and would therefore be carrying arms. This is not evidence of being armed.

The name this witness would also use for Patrick Iro is Patrick Fefele, taking his father's name. Patrick Iro and Alick Fefele are brothers, and this witness knows them both with their father's family name. This is the name used in this witness' statement to the police. The court does not consider this explanation of the different surnames as anything other than a quite reasonable explanation and does not accept that it implies that the witness does not know the accused as well as he suggests.

The evidence in chief from this witness, on its face, appeared to be convincing evidence that at least two of these accused arrived at the Casino, held a discussion with security staff at the door, went into the premises, and left shortly thereafter carrying money said to be the proceeds of the robbery that this witness did not see taking place upstairs. That he did not see the taking of the cash is not important, he maintains he saw them arrive and exit carrying the cash. Other witnesses can give evidence about the events upstairs.

However, towards the end of his evidence in chief and then in cross-examination by counsel for Patrick Iro, it became apparent that his evidence was not as reliable as it first appeared. The pistol described by the witness as being held by Patrick Iro, the witness never saw. He believed it to be a gun, as he said, because these people were members of the Malaita Eagle Force and they would have guns.

In cross-examination by counsel for Alick Fefele, the witness began to suggest, for the first time, that Alick Fefele was armed with a knife. This knife had not been mentioned by the witness in chief nor in previous statements to the casino management or the police. He was unable to describe the weapon as anything more than a knife, no size, shape or colour. Also in cross-examination for the first time the witness mentioned having seen the accused Basil Foatala. In chief he said that he had only recognised two of the robbers. It is worth noting that in his statement to a member of the casino security staff shortly after the incident he did not provide any names, even of those people he maintains that he did know.

During his evidence, I noted the manner in which it was delivered. The witness was asked if he was in any way feeling unable to continue with his evidence, and he responded that he was feeling fine. Taking the manner of delivery and the inconsistencies contained within his evidence and with prior statements, I come to the conclusion that the evidence of this witness cannot be relied upon.

The same witness testified, as regards the third accused, Basil Foatala that that person he knew as Basil was in the casino on this day as a player, not a robber. It seems again that what seemed to be a straightforward statement in his evidence – 'Basil was there too' which might have been taken to mean Basil was there together with the other two men he identified, did not in fact mean that, but that Basil he had seen on this day in the casino at an earlier stage.

Denta Adwata, another security officer from the casino, also from North Malaita, only recognized one person involved in the robbery and this he said was Basil Foatala. He gave no evidence of Basil being armed. He connects Basil with the group coming in and rushing upstairs. He did not see Basil take part in any robbery or carry any of the proceeds away. His attention when he saw the group arrive was distracted by his desire to go and tell his boss and make sure his boss kept out of the way in case they were after him. He went to tell his boss and locked the door behind him; thus he did not see the robbery or the departure of the robbers.

John Labuni, another security guard at the casino, could say that a group of men entered and robbed the casino but not who. He saw no weapons. He agreed that the whole incident took less than 5 minutes, in contrast to the witness who suggested that before entering the casino the robbers spent thirty minutes arguing outside with casino security staff.

John Regen, another security guard from the casino, from East Malaita, gave evidence that he recognized Patrick Iro and Alick Fefele as two of the men involved in the robbery. His vantage point was from the upstairs bar. He saw the door to the upstairs office broken open, but was unable to say that it was broken open either by Patrick Iro or Alick Fefele. He testified to being offered $20,000 by one robber who was brandishing a knife. "They just kept coming in and going out" was his description of the robbers entering and re entering the cash office. But this did not happen; four men went into the cash office only once; that is clear from the video evidence. Since he did not know the two of them well enough, he was not allowed to say he recognised either of them. 'More than ten people did the robbery' he said. What the witness meant by this might be unclear but it fits in with these robbers going in and out of the cash office, which he maintains did happen, when it in fact did not.

In cross-examination he said it was Alick Fefele who tried to give him the money. The implication of this must be that Alick was also brandishing the knife. But then he maintained that not to be the case. He further maintained that he did not say that the man brandishing the knife was the man who offered the money. In his evidence in chief, however, the witness had said that the man who offered him $20,000 was brandishing a knife. This, coupled with his insistence that the robbers, probably ten of them, went into the cashier's office repeatedly suggests to the court that little reliance can be placed on his account of this incident.

Significantly he says that coming up the stairs together was a mixture of players and robbers. That may explain why earlier witness may have concluded Basil was a robber when he was simply going up the stairs at the same time.

Milly Sareei was the author of one of the Cashier Control Sheets produced in evidence. She was unable to identify any of the men who robbed the casino. Her evidence suggested that one of the men had something hidden inside his trousers.

Theresa Teiau had been in the cashiers' office to get wage money. She said that the robbery was over in a few seconds. Her evidence was to the effect that some of the stolen money was carried away in a used rice bag. This was the first and only mention of money in a rice bag. She gave evidence of a robber armed with a gun behind the main three men with the cash. She was the only witness to mention this public display of a gun. This display was not referred to by the witness in her statement to the police, and was not corroborated by evidence from any other witness who, it might be thought, would have seen and would have mentioned it in their evidence.

Peter Paul Fasuu, another casino security officer, gave evidence that he recognised Patrick Fefele participating in this robbery, but continued that he had never talked with him and only knew his name from other people. He had, he said, something inside his shirt. He said that he recognized Alick (a name he had heard from other people) as a person who he had seen before who, he says, took money and carried it inside his shirt. Again this witness was viewing from upstairs, rather than downstairs where the entry of the men involved had taken place. He maintained through cross-examination that he recognised Patrick Fefele even though he was wearing a mask, and that he called out the name 'Patrick' before the robbers entered the office containing the safe.

This calling out of a name was evidence following a specific question about an answer given in a statement to the police made two weeks prior to giving evidence at trial. Yet in an earlier answer in that cross-examination the witness denied calling out the name. The witness gave evidence that he had not provided the police with a statement in 2003, the time of the investigation into the incident, because he had not been asked to do so. He was, at the time of the incident in 2000 and then in 2003 a security officer at this casino. He works with other witnesses at the casino, who had given statements in 2003. Yet he maintains that he knew nothing about this, and had not spoken to work colleagues about the robbery. This is in contrast to other witnesses who gave evidence that the incident was discussed. That, the court finds, to be more likely than not.

This witness did not know these two men well. He had heard their names and had seen them about town, although had never spoken to either of them. In the case of Patrick Iro he had not seen him for a long time prior to the robbery taking place at the casino. But he did maintain that he had seen him 'often, many times and sort of knew his name'.

Israel Maoili the Assistant Security Manager at the casino gave evidence of seeing four men leaving the shift managers office. He said that one or two of them were holding weapons. He went on to say that Alick Fefele was holding a pistol and Patrick Iro had no visible weapon but something under his shirt. This witness was responsible for taking those statements from staff members shortly after the robbery took place, although he only took three statements as the police had only given him three statement forms.

This witness gave evidence of his knowledge of Alick Fefele and Patrick Iro. The witness was also invited to comment on previous inconsistent statements, involving a substantial amount of material. His explanations varied from confusion to denial of inconsistency. At one stage he gave evidence that his statement of 23 September 2003 was simply not true. That statement included details of two additional gunmen involved in the robbery. Taking into account that the witness often had difficulty in explaining his previously inconsistent statements, his final remark in evidence that ‘what I have seen I have said’, was difficult to assess.

Choylin Yim Douglas was not called to give evidence. The court was told that she was out of the jurisdiction undergoing medical treatment. She was in possession or control of the cash stolen. What she felt as the cash was taken away can only the subject of speculation. I do not believe anything turns on this, as other staff gave evidence of the taking and of their reaction to any weapons or concealed articles that they saw during the course of the robbery.

The witness Namson Tran, a manager at the casino gave no evidence as to the identity of those men involved in the robbery, nor did the witness Ben Sade.

What findings are possible given the evidence heard by the court? That there was a theft of money from the upstairs office within the casino is well established. That this theft was carried out by at least four men going into that office is established from the video evidence. That the men went into the cash office once, rather than multiple times, is also established by the video evidence. That the men were armed? The evidence of this comes from multiple witnesses, all of whom give different accounts of the weapon or weapons and how they were carried. Those descriptions vary from patent, aggressive display to discreet non-visible suggestion. I would not be prepared to make a finding that weapons were on visible display given the wide variety of evidence to choose from. I do find that the suggestion of weapons was given by the concealed items worn by some of the men involved in the joint enterprise.

Were these three men at the scene and parties to this joint enterprise? As far as the accused Foatala is concerned, it is clear and established that he was at the scene, but not, in my view, that he was a party to the enterprise. Indeed the preponderance of evidence against him suggests that he was a player in the casino, brought into the action by possibly going up the stairs at the same time as some of the men involved in the criminal activity.

As to Patrick Iro and Alick Foatala, the position is not as simple to determine. Those two accused were seen by multiple witnesses, at various stages during the incident, either going into the cash office or leaving carrying cash. That they were present in the casino at the time, and participated in the robbery? A lay assessment of the evidence the court has heard might well be that they were there and, of course, they took part. A closer consideration of the evidence and the inexplicable inconsistencies contained within it would suggest to someone looking for evidence beyond reasonable doubt that this has not been made out. It is for that reason that earlier I have set out the evidence in greater detail than one would normally expect to find in a judgment.

The majority of witnesses to this incident were employees of the casino. In the main they were employed as security staff. It is without doubt that they talked between themselves following this incident. That, as one witness remarked, is human nature. Only three of them were invited to make their statements shortly after the incident. This came about through the provision to the witness Israel of only three statement forms. He expected, for some reason, the police to take the remainder of the relevant witness statements. When that did not happen, no steps were taken to secure any further witness statements until 2003. By that time, it seems clear that the investigating police officers were told who was responsible for the robbery and they acted accordingly. By the same time the witnesses who were still to make their statements had had three years to talk about and conclude who was responsible for what they saw that day in August 2000.

By virtue of their function within the casino, it might have been expected that the security staff would have been able to present the court with more accurate, perhaps less inconsistent, version of the events of this day, almost as one can expect of the trained observer police witness. But this was not apparent here.

All of this, and the resultant confusion that permeates the evidence presented in this case, leads me to the conclusion that this charge has not been made out to the requisite standard – that of beyond reasonable doubt – and the accused are therefore entitled to be acquitted by this court.

During the course of this trial the court was required to determine the admissibility of an interview between the police and the accused Patrick Iro. The reasons for that decision are incorporated into this judgment.

The court also determined whether during the trial it should be aborted for reasons then set out. The reasons for that decision I incorporate into this judgment.

In the event all three accused are acquitted of the charge of robbery as set out at the beginning of this judgment and shall be set at liberty on that charge.

Dated this 12^th day of July 2005

Goldsbrough J.