Regina v Iroga - Verdict [2013] SBHC 127; HCSI-CRC 164 of 2009 (24 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
PALLARAS J

Criminal Case Number 164 of 2009

R

v

Kelly IROGA

Coram: PALLARAS J
Crown: D.P.P.
Defence: Mr H. Fugui with Ms G. Nott
Hearing Dates: 18 July – 19 July 2013
Verdict Delivered: 24 July 2013

VERDICT

1. Mr Kelly Iroga ("the accused") was charged with one count of robbery contrary to section 293(1)(b) of the Penal Code (Count 1) and one count of attempted murder contrary to section 215(a) of the Penal Code. In the alternative to Count 2, the accused was charged with one count of intentionally causing grievous harm contrary to section 224(a) of the Penal Code.
   
2. The Defence case was that the accused was not one of the men involved in the attack and furthermore, was not present at the scene of the attack. The issue of identification therefore was clearly raised.
   
3. When the issue of identification is raised, extra care has to be taken in admitting the evidence. If the evidence forms a significant part of the proof of guilt, then a court must be cognisant of the dangers of convicting on such evidence where its reliability is disputed.
   
4. The burden is on the Crown to satisfy the Court beyond reasonable doubt of the guilt of the accused of the offences as charged before he can be convicted of them. The accused has no burden of proving his innocence. An accused does not have to prove anything at all and if he chooses can remain silent throughout the trial and put the Crown to its proof. If at the end of the evidence, there remains a reasonable doubt as to the guilt of the accused, then he must be given the benefit of that doubt and be acquitted. This is because the Crown would not have discharged the onus upon it of proving its case beyond reasonable doubt. Providing the benefit of any reasonable doubt to an accused is not an act of generosity, it is what the accused is entitled to under the law.
   
5. The Agreed Facts in this case showed that on the evening of the 28 November 2008, Jornax Koloni ("the victim") was walking across southern side of the Lunga bridge in an easterly direction towards Henderson. He saw five young men on the northern side of the bridge one of whom called out to him "Jornax come fastime".
   
6. Thinking that the caller must have been one of his friends, he crossed the road to the north side of the bridge. When he got there he realised that he did not know any of the men. One of them immediately demanded money from him. He replied that he had no money to give.
   
7. He was then struck on the back of the head with a hard object and soon thereafter struck on the head with a large bushknife. The blows caused him to fall to the ground and while on the ground he was kicked in the head which caused him to briefly lose consciousness. Regaining consciousness he felt another kick to his head and recalls threats being made to kill him.
   
8. He said to his attackers that if they were going to kill him they should lift him up from the ground first. He then recalls being lifted up from the ground by the men who took from him a bottle of beer, a small sum of money and his shoes.
   
9. He was lifted above the level of the bridge rails at which point he lost consciousness again. He was then thrown into the river below, a distance of some thirteen metres, and regained consciousness when he hit the water. He managed to make his way to shore and then to a nearby market where he received assistance from his sister and other people at the market. He was later taken to hospital and treated for his injuries.
   
10. The victim was examined by Dr. Patrick Toito'ona who found three wounds to his scalp. The doctor described the injuries as "serious scalp wounds extending to the bone" and as being "consistent with grievous bodily harm".
    
11. In his evidence the victim (PW1) testified that he did not know any of his attackers and was not able to identify them.
    
12. The second Crown witness was Sam Maebiru (PW2). On the evening of the 28 November 2008, he was travelling on a bus towards Henderson with two friends. The bus crossed Lunga bridge. He saw the victim being attacked by three men who were forcing him to the ground. When the bus crossed the bridge, PW2 and his friends alighted from the bus and ran back to the bridge. PW2 saw that the victim was still being attacked and saw him fall to the ground. He then saw one of the men remove the shoes from the victim.
    
13. He heard the victim say "don't kill me" and one of the men reply "don't you know the B.C. Bullets?" The victim stood up and was struck on the head with a knife by a man he knew as "Kelly". He saw the men pick up the victim and lift him over the bridge rail. At this point, he and his friends ran off out of fear. He did not see the victim actually thrown off the bridge but heard the splash when the victim hit the water.
    
14. He ran to the nearby market and told Willie (PW3) what he had seen. He returned to the bridge with Willie and showed him areas of blood on the bridge where the attack had occurred. He later went to Burns Creek with Willie where he saw Kelly sitting down. He was still wearing the same white T-shirt that he had been wearing earlier that evening. The T-shirt was bloodstained.
    
15. PW2 said that about a month earlier, someone had pointed out Kelly to him in Burns Creek. In response to a question in cross examination he said that this was because Kelly was said to have been a criminal and that's why he was pointed out to him. He said that he saw Kelly at Burns Creek approximately six times per week for the four weeks prior to the incident and that he quickly recognised Kelly as one of the attackers. He said that Kelly was the accused Kelly Iroga.
    
16. PW2 testified that although it was dark when he witnessed the attack, he could still see clearly, as he was only some 4-5 metres away at the time he observed the accused. He had recognised the accused as he was crossing the bridge in the bus and recognised him again when he ran back to the bridge. Although it was on his estimate around 9 p.m. and dark, the scene was lit up by the headlights of the passing traffic on the bridge. In any event, the witness insisted that he could still see clearly even in the absence of car headlights.
    
17. In cross examination he testified that when he would see the accused in Burns Creek, he sometimes walked directly past him and would come within touching distance of him. When asked how long he would look at him for, the witness replied "sometimes I would look at him for three minutes". When asked why he would look at him for three minutes, the witness replied "because I was told he was a criminal person".
    
18. PW2 testified that he was watching the incident for about 2 minutes from a short distance away. He said that he was still affected by the alcohol he had drunk earlier in the day with his last drink at 4:30 p.m. He said that his earlier drinking did not at all affect his ability to make the observations he made and that although there were other men present, he was watching the accused and saw him clearly.
    
19. Mr Willie Kaifiri (PW3) was the next prosecution witness. He corroborated PW2's evidence as to walking to the bridge and seeing blood on the ground. He also agreed that he went with PW2 to Burn's Creek and saw the accused. He said that the accused was wearing a white, bloodstained T-shirt and was holding a large bush-knife in his hand.
    
20. PW3 was able to identify the accused because he had known him since he was a young boy, he was related to him through his (PW3's) mother's side and also because he had lived in the same place in Burn's Creek as the accused as neighbours for 10 years. He said that even although there was little lighting at Burn's Creek when he saw the accused, he came very close to him and was able to see him. He also said that car lighting helped to brighten the area and that there were candles alight in front of the canteen where the accused was sitting.
    
21. The Prosecution then tendered a number of statements by consent and closed its case.
    
22. A no-case submission was made by the defence. I did not call upon the prosecution to reply and rejected the submission.
    
23. The accused then gave sworn testimony in his own defence. He said that he did know where he was on the evening of the offence, but that he was not involved in it. He had never assaulted anyone on Lunga bridge. He knew that in 2008, he was in Honiara from July onwards but could not remember where he was in November. He testified that he was surprised when he was arrested. He testified that he was also surprised when PW2 testified that he was at Lunga bridge.
    
24. In cross examination he denied ever having blood on his shirt and rejected the evidence of PW2 and PW3. When it was put to the accused that he struck the victim and threw him off the bridge, the accused said "I don't remember". While this answer was inconsistent with his earlier evidence, I took it to mean that while he did not remember where he was on that particular night in November, he was not involved in any attack on the victim.
    
25. The Defence called no other evidence after the accused's testimony and closed their case.
    
26. Closing submissions were directed principally at the identification evidence of PW2 and PW3. The Prosecution stressed that PW2 had seen the accused on more than twenty occasions prior to the incident and that PW3 knew the accused well.
    
27. Defence submitted that the identification was of such poor quality as to be unreliable. It was said that PW2 had never met or spoken to the accused, that he had only had a "fleeting glance" on the night of the incident, that he had been drinking, the light was poor and that there was no corroboration of his evidence. As for PW3 it was said that he was not present at the scene and did not provide direct evidence against the accused.
    
28. Identification evidence is well known to constitute one of the most unreliable forms of evidence. It has the capacity to result in the conviction of an innocent person even if it is delivered by a witness who is "certain" of what he saw. Human perceptions and recollections are notoriously prone to error as the capacities of individuals to recall accurately what they perceived vary enormously.
    
29. In the present case, PW2 has testified that he has not seen the accused since the night of the offence. In Alexander v The Queen Gibbs CJ said[1]
    

"Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused."

30. Apart from the factors pointed out by the defence, which affect the reliability of the identification, there is one other feature of this case, which further raises the need for extreme caution before it can be accepted. It has long been considered that the most reliable identification can be obtained when the identification is made as soon after the offence as possible. This obviously minimises the effect of the passage of time on a person's memory and the possibility that the witness will "identify" the person in the dock because he is in the dock.
    
31. Evidence of an early identification as well as evidence from a person, usually a police officer, who witnesses the identification being made is usually the best and most reliable way to present evidence of identification. In this case, not only was no police officer called to testify as to the identification process that was adopted, there was no identification process adopted at all. It seems that PW2 has never been asked to identify the accused prior to trial.
    
32. This might be seen as extremely poor investigating by the police officers involved and would normally result in the identification evidence being rejected as unreliable. Sections 81 - 86 of the Evidence Act set out the provisions to be followed by Solomon Islands police officers in seeking to obtain identification evidence. Those provisions have been totally ignored. The officers involved in this case and the Police Force generally, would do well to remind themselves of these provisions.
    
33. There is however an accepted distinction between identification evidence where a witness purports to identify someone whom he sees for the first time committing the offence and the evidence of a witness who identifies an offender because he knows him or is familiar with him. The Evidence Act does not specifically deal with this type of evidence although in other jurisdictions similar provisions have been held to extend to recognition evidence[2].
    
34. The need for caution before convicting on identification evidence has often been repeated. In Domican v R[3], in the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, it was stated that:
    

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed..... Consequently the jury must be instructed 'as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case'...... The attention of the jury 'should be drawn to any weaknesses in the identification evidence'."

35. In terms of PW2's purported recognition of the accused, I have taken careful consideration of the number of times and the circumstances under which the witness had previously seen the accused. I have considered the lighting conditions on the night of the offence, the fact that the witness had been drinking alcohol earlier in the day, the amount of time and the circumstances in which the witness had the accused under observation and the amount of time that has elapsed since the witness last saw the accused.
    
36. I am satisfied that the witness had seen the accused, on his accounting, some 24 times in the four weeks prior to the incident. Accepting that evidence I am satisfied that the witness did become very familiar with the appearance of the accused and that his evidence of seeing the accused on Lunga bridge was in fact evidence of recognition of a person whose appearance he knew very well.
    
37. I am satisfied that the closeness of the witness to the events as they unfolded together with the light of passing vehicles on the bridge, enabled the witness to see the events with sufficient clarity as to be reliable and so as to be able to perceive accurately the involvement of the accused. I also accept the evidence of PW2 when he says that although he was still to some extent affected by the alcohol he had consumed earlier that day, it in no way inhibited the accuracy of his perception of what happened in front of him or of his recognition of the accused. Given that he was unchallenged in his testimony that his last drink was at around 4:30 p.m. and that his estimate of the time when he witnessed the incident was 9:00 p.m., I am satisfied beyond reasonable doubt that his observations were both accurate and reliable.
    
38. PW3's evidence is clearly evidence of his recognition of a man whom he has known all of his life. Although he did not witness the assault on the victim, his evidence of seeing the accused with a blood stained shirt and a knife a short time after the incident, is strong circumstantial evidence supporting the Prosecution's allegations. The accused's denial of being seen by the two men and his denial of ever having a blood stained shirt or holding a knife on that evening are rejected in toto.
    
39. As a result of these findings, I am satisfied beyond reasonable doubt that the accused was involved in the attack on the victim on the night of 28 November 2008. I am satisfied that he robbed the victim of his shoes and other items and that it was he who struck the victim a severe blow on the head at least once and probably three times with a large bush knife.
    
40. No real argument was raised by the Defence as to the element of intention. As stated, the principal defence was one of identification. However,I make it clear that due to the nature of the combined attack on the victim, the nature and severity of the wounds inflicted upon him and the throwing of the victim off the bridge to the water 15 metres below when he was in a state of semi consciousness, that this evidence clearly demonstrates beyond reasonable doubt, at the very least, an intention to cause grievous bodily harm to the victim. I find therefore that the assault on the victim by the accused and others was an assault committed with malice aforethought as defined in section 202(a) of the Penal Code.
    
41. The accused will be convicted of one count of robbery contrary to section 293(1)(b) of the Penal Code (Count 1) and one count of attempted murder contrary to section 215(a) of the Penal Code.
    

....................................................
THE COURT

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^[1] [1981] HCA 17, (1981) 145 CLR 395
^[2] In Trudgett v R [2008] NSWCCA 62 at [23] – [31]; [2008] NSWCCA 62; (2008) 70 NSWLR 696; it was considered that the Evidence Act 1995 (NSW) extended to recognition evidence.
^[3] [1992] HCA 13, 11; (1992) 173 CLR 555