Malsoklei v Public Prosecutor [2002] VUCA 28; CA 02-01 (24 October 2002)

IN THE APPEAL COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION
Criminal Appeal Case No.2 of 2001
BETWEEN:

PUBLIC PROSECUTOR

(Appellant)
AND:

BERNARD MALSOKLEI
MICHEL MALSOKLEI
TIMOTHY MALSOKLEI
NORBERT MALSOKLEI
RAYMOND W. PIERRE
TIMOTHY SOVRINMAL
SOTER MALSOKLEI

(Respondents)
Criminal Appeal Case No. 3 of 2002.
BETWEEN:

BERNARD MALSOKLEI
MICHEL MALSOKLEI
TIMOTHY MALSOKLEI
NORBERT MALSOKLEI
RAYMOND W. PIERRE
TIMOTHY SOVRINMAL and
SOTER MALSOKLEI

Appellants
AND:

THE PUBLIC PROSECUTOR

Respondent

Coram: The Honourable Chief Justice Vincent Lunabek
The Honourable Justice Bruce Robertson
The Honourable Justice John Von Doussa
The Honourable Justice Daniel Fatiaki
The Honourable Justice Roger Coventry

Counsels: Mrs Heather Lini Leo the Public Prosecutor.
Mr Hillary Toa for the Individuals charged.

JUDGMENT

The Court has heard together an appeal and cross appeal arising out of decisions given in the Supreme Court at Luganville on the 23^rd of November 2001.

On the 22^nd December 1995 Roslyn Bongus was at the Lolmasing night club on the Island of Malekula when she collapsed and was taken to Norsup Hospital where she was pronounced to be dead.

In April 1996 Channel Soksok went to the police and talked to them about the death of Roslyn Bangus and events which had occurred in the days prior to her death. Eventually each of the men now before the Court were in 2000 committed by the Senior Magistrates’ Court at Lakatoro to the Supreme Court. All were charged with Witchcraft Contrary to Section 151 of the Penal Code Act [CAP.135] (the Act)): Soter Malsoklei only was charged with Intentional Homicide Contrary to Section 106 (1) of the Act. The other six men were charged with complicity to commit Intentional Homicide Contrary to Sections 30 & 106 (1)(b) of the Act: All the men were charged with rape Contrary to Section 30 of the Act.

Their trial began in Luganville between the 20^th and 28^th of September 2000 but was not concluded in that period. There was a further period from 7^th November 2000 until 10^th December 2000 and then again from 10^th July 2001 until 13^th July 2001. The trial next continued between 20^th and 25^th September 2001.

On 19^th October 2001 final submissions were received from Counsel on each side and the verdict and sentence were eventually delivered on 23^rd November 2001.

We refrain from cataloguing the reasons for the extraordinary time which this trial took to hear and various applications and matters which were raised in the course of it. They are not relevant to our decision but we do note that once a trial involving allegations as serious as this commences (and even when there has been a serious miscalculation as to its likely length and even when it is necessary to have some adjournment to enable additional steps to be taken) it is intolerable and unacceptable that a matter should extend over a period as long as this. Having commenced the trial its hearing must be given substantial and continuing priority until it is brought to a conclusion.

The Judge found all four charges proved beyond reasonable doubt and entered convictions accordingly.

The Judge however decided to exercise his powers under section 187(1) of the CPC Act and sentenced them on the very day that his decision was delivered. He noted that the men had spent more than twelve (12) months in custody and that when they had been on bail they had basically remained faithful to their conditions.

The Judge said the most appropriate way to deal with the men was under section 43(4) of the Penal Code Act and accordingly each of the men was convicted as charged but discharged.

Not surprisingly in light of the very serious nature of the charges on which they had been convicted there was an appeal filed by the Public Prosecutor against the inadequacies of the sentence and for imposing a sentence which was unreasonable.

When that appeal was listed for hearing at the April 2002 Session of this Court, we received an application for leave to appeal out of time against all the convictions.

This was opposed, but having heard both Parties the Court was satisfied that there were explicable reasons for the delay and the justice of the matter required that the entire matter be considered. Leave was granted accordingly with the intimation that the Court of Appeal would travel to Luganville in this Session to hear the two appeals together.

The appeals against conviction were advanced on a variety of grounds but basically that the evidence taken as a whole was insufficient to fulfil the onus on the prosecution to prove the charges beyond reasonable doubt.

This was particularly so as the evidence given by each of the men (much of which raised alibis of being away from Malekula or in circumstances that when they arrived, they could not be criminally involved) was such that the evidence of Channel Soksok upon whom the entire prosecution depended, was unreliable and lacked credit.

Also the Judge failed to properly consider the dangers of acting on the uncorroborated evidence of Channel Soksok who was an accomplice. The circumstantial evidence relied upon by the Judge to support his findings did not in any material way support the evidence of Channel Soksok or the other witnesses for the prosecution.

Also the trial Judge relied on evidence which had been heard on a voire dire to support findings in the main trial which was impermissible.

There was no medical evidence as to the cause of death and there was other evidence about the death, which was not consistent with Channel Soksok’s testimony as to what had occurred.

The Judge in taking Judicial Notice of matters which required to be established supported by proper evidence, reached conclusions on matters which were not proved.

Generally that the evidence of Channel Soksok about what happened was so improbable that in the circumstances it was totally unreliable.

The Soksok evidence was that on the night of 18^th December 1995 the seven accused men together with himself were dressed in traditional dress. They lit a fire and were dancing and chanting around while a black pussycat was hanging over it. The body of the cat he said was dead but the head was moving. Because this ceremony was an initiation rite, during it, the name of the deceased Roslyn was submitted, and it was agreed that she was to be the victim of the witchcraft and sacrificed.

Soksok said that on the night of 20^th December 1995 in a garden near the Lolmasing Night Club all the defendants and himself had sexual intercourse with the deceased. After that one of the men Soter Malsoklei hit Roslyn over the head with a piece of wood knocking her unconscious and killing her. Channel said that Michel Malsoklei then removed her intestines by using a pandanus leaf pushed up her anus. Michel Malsoklei next severed the deceased’s liver or heart and gave it to Channel Soksok to eat which he did.

In his evidence Soksok told the Court that after the death of Roslyn, Michel Malsoklei sang a song while holding a leaf over Soter’s body. As a result Soter’s face changed into the face of the deceased including his upper body down to his abdomen although his lower parts remained unchanged. He said Soter Malsoklei (in his metamorphised state) was ordered to go to the deceased’s home and to act as if he were the deceased, which he did for two days.

Two nights later on the 22^nd of December 1995 Channel Soksok said that he saw Michel and Bernard Malsoklei go to the Night Club with the deceased’s dead body during the time that Soter was dancing around inside pretending to be Roslyn. She was together with her cousin Josephine Bangus who had accompanied her and Michel Malsoklei to the Night Club.

On a pre determined signal being given Channel says they threw the body of the deceased Roslyn down on to the floor and Soter (who had been pretending to be Roslyn up to that stage) immediately disappeared from the scene. Soksok said that he was so fearful that he left Walarano and returned to his home village at Lamap. In April of the following year, feeling so guilty and horrified at having eaten a raw human heart he went to the police and voluntarily made a report which brought matters to light.

Other prosecution evidence came from Rosali Soksok who is the wife of Vidal Soksok. They are the owners of the Lolmasing Night Club. She said the deceased Roslyn was discovered dead on the 22^nd of December 1995. Rosali said that she had been collecting entrance fees and had seen Josephine and another person (who happened to be pretending to be the deceased) come to the night club. She noted that this other girl’s clothes and hair were tidy when they arrived. As they were dancing she saw this person fall down. When she went across she saw it was Roslyn Bangus and noticed that there were changes in her clothes and hair and her body looked dirty with grass and dirt. She was also very cold.

Josephine Bangus said that on 22^nd December Michel Malsoklei had come to the house and sought permission from her father for her and her cousin Roslyn to go to the dance. He didn’t pay for them to go in and didn’t go in with them himself. While they were dancing the person with her (who she thought was her cousin Roslyn) complained of head pains and fell on the floor and stopped breathing immediately. She said that she accompanied the body on a truck organised by Michel Malsoklei to the hospital where she said the Japanese doctor confirmed that Roslyn had died “a long time ago”.

The accused Michel Malsoklei said that he was in Vila working for Atingting Construction Company until 21 December 1995 when he travelled to Aulua on the MV Veronique where they unloaded building materials. He then went on a truck to his home arriving at sun down. He said on 22^nd December Roslyn’s father came to his house and invited him to their house. He said that he went and had kava and later took Josephine and Roslyn to the dance at Lolmasing Night Club. He said that Roslyn’s father had asked him to accompany the girls. He said he paid his own entrance fees and went in and said he watched them dancing. He was told that Roslyn had fallen down. When he went, other people were surrounding her and he went and organised a truck to get her to hospital where she was confirmed as dead by the doctor. She was then taken to her home village. He claimed to have been sorry and shed tears because she was his aunt.

Bernard Malsoklei said he was on Santo from 2^nd December 1995 to visit his daughter who was married to Pierre Sewen of Malo. He said in evidence he had left Santo to return to Malekula on 23^rd December after he had talked with his daughter. He travelled on MV St Joseph and was dropped off at Vao after dark from where he took a truck to his home where his wife and son Philip were. He said he stayed there and drank tea with bread with his wife and two boys Masio and Marko. He learned only of Roslyn’s death on Saturday when he went to share his sympathy with relatives. He said he did not know that Michel Malsoklei had return to Malekula and was with Joseph Jacob.

Pierre Sewen (who is Bernard Malsoklei’s son-in-law and is the principal of the Santo East Primary School) said that in December 1995 Bernard Malsoklei travelled a lot between Malekula and Santo. He said he had seen his father in law on 18^th December 1995 standing by Wong Store. They had later met up with the men together with his wife Roslyn and had gone to Ah Pow Store to buy rice, sugar, wine and beer before going to Unity Park where they drank the beer. They said that they dropped Bernard Malsoklei off at the ship.

Timothy Malsoklei said that he was at Walarano in December 1995 but during the week when Roslyn died he was at Vao with his uncle having gone there on Wednesday the 20^th December and returning only after he learned of Roslyn’s death.

Norbert Malsoklei said that from 1^st to 31^st December 1995 he was living at Jaillie’s house and he returned to his village on 21^st December. On 22^nd December, he was involved in preparations for his cousins’ marriage and that he was told about Roslyn’s death by a boy. He said he had no involvement in the death either.

Soter Malsoklei said that he was at Walarano in December 1995 looking after his home and livestock. He said that his father, Bernard Malsoklei his mother and two brothers Masio and Marko were in Santo returned home on the night of 22^nd December 1995 on a truck and were dropped off at Vao and they went to share sympathy with Roslyn’s family the following day.

Raymond Pierre said that from 16^th to 31^st December1995 he was with his family in his village at all times. He said he did not know Channel Soksok although he knew he was from Lamap in North East Malekula. He denied entirely the suggestions that they had been at a house in the bush that they had practised witchcraft.

Timothy Sovrinmal said that he was living with his father at Natawa Village, Shark Bay and he went to Malekula only after 26^th January 1996 on the Ship Tiare. He said he had been living with his grandpa at Bethel and he never knew or saw any of the other defendants until the police arrested them and detained them in prison at Lakatoro.

Finally Chief Malkon said he was at Walarano working his gardens in December 1995. He attended a Chiefs meeting which sat to hear a case between Vidal Soksok and Michel Malsoklei. In the sentence the Chiefs had made a decision that Michel Malsoklei pay VT10,000 and a pig to the Bangus family. He said that there was no suggestion at the meeting that Michel Malsoklei had killed Roslyn Bangus. In the meeting there was said to be a suggestion that someone else may have been involved, but that has no probative value and it does not assist in this case.

The trial Judge correctly set out the requirements about the onus of proof and the standard of proof, but regrettably we are not able to conclude that those important precepts were applied in this case.

It appears that the reasoning in the case started from the proposition that there had been magical behaviour and activity which amounted to black magic. Therefore anything which was otherwise contrary to normal human experienced and inconsistent with the physical realities of life as lived and experienced was to be swept under the carpet on the basis that black magic explained such factors that seemed to be inexplicable.

In our view the proper starting point was not the charge for which the maximum penalty was two (2) years but the offences in respect of which life imprisonment was the maximum penalty.

This was a case of homicide. Whenever there is an allegation of a killing one expects and anticipates that at the trial there will be clear and compelling evidence from a doctor as to the cause of death. Roslyn Bangus was on the 22^nd of December, taken to the Norsup Hospital and examined by a doctor. We understand the prosecution submissions, that the sophistications of modern medicine and the amazingly revealing possibilities of forsenic pathology will not be available in every small hospital on every island. However this was a situation in which it was alleged that the body taken to the hospital was that of a person who had died 48 hours earlier from a crack to the head with such force as to render her unconscious and kill her. Her body was said to have been disembowelled by the insertion of a pandanus leaf. There had been a cut in her throat and her heart had been removed. It is beyond comprehension or belief that signs of this extreme intrusion and assault to the body would not have been immediately apparent even upon the most cursory examination. In fact one would have anticipated that the extent of injury and damage would have been seen by any person who was viewing the body or moving it. Immediately, therefore, there had to be an enormous question mark over the credibility and reliability of Channel who so graphically described these things having occurred. The onus was on the prosecution to deal with this area. It was not a matter for the accused men to disprove. Dyers v. Queen [2002] H.C.A 5.

The second issue is Channel’s assertion that the death had occurred on the 20^th of December but for 48 hours thereafter a partially metamorphosed man was able to go to the deceased’s home, successfully carry on the life and activities of the deceased and fool and camouflage this from her own parents, family, friends and those about her. That in our assessment is another unbelievable proposition. It appears to us that, as in so many other aspects of this case, it is indulging in a circular argument to say that because of the black magic this could occur. There was no evidence that this sort of thing occurs in black magic nor that there was witchcraft practiced here. It is supposition and conjecture which has no place in a court of law.

The next issue is the evidence that on the 22^nd of December in the course of dancing at the night club there was a manoeuvre where-by the boy who had been masquerading as the deceased girl for 48 hours, suddenly is able to disappear and without the door keeper or her friends or others who were there having seen it happen and the body of the deceased is flipped into the room and dropped on the floor to make it appear as if the person who had been dancing there had just collapsed. That too is a narrative of events which simply lacks any credibility and which places a major shadow further across the evidence of Channel Soksok. The prosecution again had to call witnesses who were there to tell of their recollection of this totally incredible scenario.

When these are taken either alone or in concert we are left with the clear and unequivocal conclusion that there was no credibility or reliability in the evidence of Channel Soksok. The trial Judge appears to have taken the view that there was what he described as circumstantial evidence which the court was able to rely upon in concluding that the Channel Soksok evidence was credible. We are unable to see how that was so. There is no doubt that Roslyn Bangus died but that tells us nothing about why she died how she died or who might have been responsible for it. The suggestion that Michel Malsoklei asked if the girls could go to the dance is a factor which does not point one way or the other, nor does the fact that the girls paid for themselves to enter the dance or that Michel did not dance with them at the hall.

Michel Malsoklei organising a truck to go to Norsup Hospital is an act which is equally consistent with a person who discovered that someone he knew had collapsed and appeared to be dead on the floor. The lack of his tears is an indication (if that is what occurred) that people behave in different ways in times of stress and trauma.

The fact that the door keeper thought that there was a difference of condition between the person who came in the door and a person who was dead on the floor was a factor. But it needed to be weighed along side the fact that this witness did not see the body being brought in, in circumstances where the evidence must suggest that it was such an extraordinary manoeuvre that it would have been available for all to see.

The Judge next mentioned that he had regard to the evidence given in a voire dire. Such material cannot be used and is of no probative value and does not assist the prosecution case in the trial. The same must be said about information about the activities of the Chiefs meeting. No evidence was given about the actual basis of the gathering and speculation about possible theories is of no assistance in the determination of a criminal case.

It therefore appears to us that the proper approach for the Court is to say that the only evidence came from someone who clearly was an accomplice and whose credibility was so suspect that it could not be relied on by the Court. It did not even get to the point of having to consider the approach in the case of R v Kilbourne (1973) AC/729. In the case the House of Lords indicated that where there is credible and reliable evidence from an accomplice, providing the trier of fact is vigilant to the dangers of relying on the uncorroborated evidence on such a person, he may nevertheless do so. There was here no corroboration but, much more importantly, the evidence of the accomplice was simply not credible in any way which could make it worthy of consideration.

We are not satisfied with the manner in which the evidence of each of the defendants and their witnesses was dismissed out of hand. The accused gave evidence that they were not at the scene on either the 18^th December when the plot was formed according to Channel, on the 20^th of December he said the rape and murder occurred. The Judge pointed to some factual matters which he said were inconsistent but not one of these was a matter of any substance.

Unless and until the Court can say with confidence that the accuseds’ denials of involvement could not reasonably be true then there was no way in which an accused person could be found to have been criminally involved in what occurred. No evidence of substance was called to demonstrate that what they had said in evidence was not true. They were all vigorously cross examined on their explanations and did not budge. In those circumstances there would have been substantial barriers to conviction even if the evidence against them had been credible. That is what the onus and standard of proof demand.

We cannot accept that the mere fact that a person goes to the police and voluntarily tells an inculpatory story necessarily means that what he then says and later repeats in Court is an accurate and truthful recollection of events which occurred. It appears that some people may have been heavily consuming kava and alcohol and one is left with the distinct impression that Mr Channel Soksok’s evidence might have been influenced by such factors.

The onus on the State in every criminal case means that the prosecution must establish each and every essential element of any offence charged so that one can be sure that what is alleged did occur and each of the particular individuals charged was implicated in it. This also requires the Court concluding that a denial of involvement could not reasonably be true on the basis of the evidence led in Court.

Judicial notice is a device which is available to deal with issues about which there can be no question or controversy and where commonsense, reason, and experience of all ordinary people put the matter beyond any dispute. This case appears to have been advanced on the basis of judicial notice being taken of a multitude of matters which do not fall into that category and which cannot be countenanced by a court of law.

We are therefore left with a serious doubt that any of the convictions could be justified in the circumstances of this case. The appeals against conviction are accordingly allowed in respect of each of the seven men. All convictions are quashed.

For completeness we should make a brief comment on the issue of the sentence appeal. If it has been established on proper grounds that these men had each raped this women, one after the other, and then, one had proceeded to kill her and the others were actively involved in it and in subsequently hiding that killing, all as part of a joint and continuing plan between them, a Court would have to conclude that an effective penalty of only one year in prison was totally insufficient.

Before us the prosecution suggested that a sentence of five (5) to ten (10) years would be appropriate.

If these men had behaved in the way alleged by the prosecution then every one of them had been involved in the most serious of offending. We would consider the starting point for sentence for such atrocious crimes would have been life in prison. There can be no half-way houses in respect of those who behave in the way that the prosecution theory alleged had occurred in this case.

Courts must be eternally vigilant in assessing and scrutinising evidence to ensure that they have total confidence in the conclusions that they reach. But having done that, the penalty imposed must properly, proportionately and sensibly reflect the established culpability. Conviction and discharge for horrendous premeditated actions could never have been a reasonable or sufficient penalty even if they had been in prison for about a year.

Each man will be formally discharged as and when they appear before a Judge of the Supreme Court.

DATED at LUGANVILLE, this 24th DAY of OCTOBER, 2002

BY THE COURT
V. LUNABEK CJ.
J. B. ROBERTSON J.
J. von DOUSSA J.
D. FATIAKI J.
R. COVENTRY J.