Regina v Maenu - Judgment 1 [2006] SBHC 29; HC-CRC 327 of 2004 (28 July 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 327 of 2004

REGINA

v

JOHN ROBU MAENU, ALLEN MAKABO,
JAMES LOMO AND JIMMY KALUAE

HIGH COURT OF SOLOMON ISLANDS
(Commissioner R D Chetwynd)

Hearing at Honiara: 13th 14th 17th 19th 20th 21st 26th July 2006
Date of Judgment at Honiara: 28th July 2006

R Talasasa DPP for the Crown
A Mane Esq for John Robu Maenu and James Lomo
Ms E Garo for Allen Makabo and Jimmy Kaluae

JUDGMENT

Commissioner Chetwynd. The four defendants are charged with armed robbery contrary to s.293(1)(a) of the Penal code. The facts of the case are simple and largely undisputed. On Sunday 8th September 2002 the four defendants took away a taxi being driven by James Taemu. This occurred in the area of the Hot Bread Kitchen at Point Cruz. The four pulled up behind the parked taxi in a red Hilux which was being driven by John Robu Maenu. They all got out. The keys were removed from the ignition of the taxi and a gas canister launcher was also removed from somewhere inside it. There has been no suggestion that the gas canister launcher can be anything other than an offensive weapon. James Taemu says that the gas canister launcher was "pointed at his chest". This is denied by the defendants. The keys to the taxi were given to Allen Makabo who then drove it away. The remaining defendants followed in the red Hilux.

John Robu Maenu says in his evidence and he, Allen Makabo and Jimmy Kaluae say in their statements under caution, that someone else was involved. They say that a man called Devesi was the instigator. Devesi has since died.

It should be mentioned that in the statements under caution different names are used (for example Allen Makabo is variously called Sa’agi or Samani) and the possibility of yet another man called Sobe being involved is also introduced. Whilst the use of different names is clarified in the statements
the possible existence of Sobe remains a mystery, albeit a mystery of no consequence in this case.

The defendants say that they met up with Devesi near to a canteen belonging to Jimmy Rasta at Ranadi. They were going to stop there for cigarettes but Devesi waved them down anyway. According to Mr Maenu’s evidence, Devesi just told him to take him with them. In the caution statements tendered to the Court Devesi is said to have told them that he wanted them to go with him on a mission and to go and take a car ( the statements of John Robu Maenu and Jimmy Kaluae) or alternatively that he wanted them to go and look for a car on Rasta’s orders (Allen Makabo’s caution statement). All the defendants say they were reluctant to go with Devesi but they were frightened of him. They say he pulled up his vest to reveal a pistol tucked in the waistband of his trousers. He then pulled the pistol out. Later it is said that Devesi put the pistol on the dashboard of the Hilux.

There is no evidence that Devesi threatened any of the defendants directly with the pistol. There is no evidence that Devesi made any threats to the defendants. They say that they knew he was one of Jimmy Rasta’s boys, they saw he was drunk, they had seen his pistol and they were frightened. The defendants say in the caution statements and in evidence that they only did what they did (steal the taxi from James Taemu) because they were frightened.

In short then the defendants are raising the issue of duress. Section 16 of the Penal Code says;

A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence.

The Court of Appeal[1] has said of this section:

We are here concerned with a Penal Code and clearly where the language of this Code is inconsistent with the common law of the United Kingdom and elsewhere the former must prevail. But that does not mean that cases on the common law of the United Kingdom are of no assistance to a Judge considering the application of s.16 to a particular set of facts. The word "compelled" is not defined in the Code and regard could be had to authorities in other jurisdictions in determining what was encompassed by the use of the term in this context. Such other authorities would not be binding and could not be resorted to as a matter of law to confine the operation of s.16, but they could be helpful in determining what evidentiary matters were relevant in determining whether there was such compulsion in the legal sense.

Earlier in their judgment the Court said that there are three elements to the defence set out in s.16.

"Firstly, there must be at least two offenders with the relevant threat coming from the other offender... ......

Secondly, the threat from the other offender had to be a "threat...... instantly to kill....or do....grievous bodily harm if he refuses." That is there had to be a threat to kill immediately the party relying on the defence if that party refused to do the act constituting the charged offence. The fact that only a threat of "instant" death will suffice is emphasised by the provision that the threat of future injury will not be enough to found the defence.

Thirdly, the "act is done", that is the charged offence is committed, "only because" the offender was "compelled" by threat of instant death or grievous bodily harm to do so."

Before I can consider a defence under s.16 I have to consider what evidence there is to support it. As the Court of Appeal put it:-

It is ultimately for the prosecution to negative the defence based on S.16, but there is a prior evidentiary onus on the accused. Details of the threat and the capacity to carry it into immediate effect are peculiarly within the knowledge of the accused and in consequence an accused must by evidence demonstrate that the issue is a fit and proper one for consideration by the tribunal of fact. The initial evidentiary burden is on the accused, and all that prosecution need do is negative what is prima facie established by the accused.

Bearing in mind what has been said by the Court I must consider the three elements. First, were there at least two offenders, one of whom who was doing the threatening. The defendants (more accurately three of them) mentioned the "other" offender, Devesi, in their caution statements. Mr Maenu also gave evidence about Devesi. I find that there is then prima facie evidence concerning the first element.

Jumping next to the third element, the caution statements tendered and the evidence given in Court confirm that all four defendants only got involved, only completed there part in the offence, because of threats from Devesi. If that is not correct then given the burden on the prosecution I can say that there is no evidence to negative that point. There has been no evidence from the prosecution to suggest that the defendants became involved or stole the taxi for any other reason.

What we are left with then is the second element. If there is prima facie evidence that there was a threat from Devesi to instantly kill or do grievous bodily harm to the four defendants then I should proceed to consider whether the prosecution has shown beyond reasonable doubt that such threats did not, in law, exist. If there is no prima facie evidence of threats then the defence under s.16 fails at the first hurdle.

Is the fact that a defendant says he felt threatened by Devesi when there were no specific threats actually made, prima facie evidence of a situation where, in law, it can be said that there were threats instantly to kill him or do him grievous bodily harm if he refuses? I am of the opinion that such a belief alone could be capable of being prima facie evidence. Whether it is capable of being so in this case is a question to be answered by the Court and that question involves a subjective test to be applied to the evidence and in respect of each defendant individually.

Evidence has been adduced that Devesi was an associate of Jimmy Rasta. Some of the prosecution witnesses were questioned about Jimmy Rasta and the situation generally. It was agreed by one witness (Sgt Taro) that law and order had "come up" but that it was not "fully controlled". Sgt Tofasi said that "not all police were neutral" at the time of the incident and that there generally was "no real sense of security". He was then asked about Jimmy Rasta and he agreed that he was a well known man and when asked, "Did his name put fear into ordinary people?", he answered, "Yes".

Apart from those comments and from the generalisation from three of the defendants in evidence and in their caution statements that they were "frightened" of Devesi because he was an associate of Jimmy Rasta there is no direct evidence of the propensity of Devesi to resort to violence.

There is evidence from the defendants that Devesi was drunk but that does not advance their cause greatly. There is no evidence that the degree of inebriation exhibited by Devesi made him more aggressive or reckless. The evidence is that he pulled up his vest to show them the gun he had and that he took it out. None of the defendants has said that he pointed it at them or waved it around in a threatening or reckless manner. The evidence is to the contrary, once inside the Hilux he placed the gun on the dashboard.

The mere fact of Devesi having a gun is not sufficient to say that it would put the defendants or any of them in immediate fear of being killed or wounded. After all, when John Robu Maenu saw a weapon in James Taemu’s taxi he simply reached in and took it away. It cannot be said then that the mere sight of a weapon paralysed the defendants with fear.

In my view it cannot be said, in law, that any of the defendants were compelled to commit an offence by threats on the part of the other offender or offenders instantly to kill them or do them grievous bodily harm if they refused. In other words I find that there is insufficient prima facie evidence to allow the defendants to rely on the statutory defence set out in s.16 of the Penal Code.

That is not an end to the matter though. The defendants are charged under s.293 (1) (a) of the Penal Code. The evidence is that the defendant Maenu went to the driver’s side of the taxi after there was some kind of argument between the three other defendants and the driver and because the keys were not instantly being handed over. Maenu removed the keys from the ignition. Maenu then opened the back door of the taxi and removed the gas canister launcher. Whilst the driver of the taxi, James Taemu, said that the gas canister launcher was pointed at him and that is why he gave up the taxi I am not convinced by his evidence. He said in cross examination that he was frightened by the fact that all four defendants approached him. He said, "I didn’t expect them to do that and I was frightened." He was frightened what they might do to him. This happened, "as I got out" (of the taxi) and before the keys were removed from the ignition.

It has not been shown, beyond reasonable doubt, that the gas canister launcher was used in the offence. Whilst I accept that in the course of removing the weapon and handing it over to be put in the Hilux John Robu Maenu may have pointed the muzzle in the direction of Mr Taemu it was not done so deliberately. I do not find that it was used by Maenu to reinforce the demands made for the keys. I do not find that the gas canister launcher played any part in the robbery.

It might even be said that the offence had been completed by the time Maenu removed the gas canister launcher from the taxi. The keys had been taken, Mr Taemu was getting out of the vehicle and control and possession of it had already effectively been assumed by the defendants. Because of my finding that the gas canister launcher played no part in the robbery I have no need to make any finding on that point.

In all the circumstances I acquit the defendants of the charge under s. 293(1)(a) of the Penal Code. I do find that there is sufficient evidence to convict them of robbery contrary to s. 293 (2) of the Penal Code and I so convict them.

R D Chetwynd
Commissioner of the High Court

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^[1] Kejoa v Regina Case No 28 of 2006 and Isa v Regina Case No 31 of 2006 Judgment No 26 of 2006