Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Lausalo v Queen [1994] SBCA 11; CA-CRAC 4 of 1994 (15 July 1994)

IN THE SOLOMON ISLANDS COURT OF APPEAL
Criminal Appeal No.4 of 1994

BETWEEN:

FREEZER LAUSALO
(Appellant)

And:

THE QUEEN
(Respondent)

Connolly P.
Kapi J.A.
McPherson J.A.

Delivered the 15th day of July 1994

JUDGMENT OF THE COURT

On 10 December 1993 the appellant was convicted before Palmer J. of grievous harm and was sentences to three years’ imprisonment. He appeals against both his conviction and his sentence. The circumstances were as follows. The victim, John Lovana, who resides at Foxwood spent the evening of 27 March 1992 at Tenavatu Club where he had a considerable amount to drink. He cannot say when he left the Club but he regained consciousness in hospital after a period of unconsciousness, with multiple injuries, including broken jaws, a cut to the right elbow, a wound to the back of the head and broken ribs on the right side. The injuries were consistent with blunt object blows. He had been found on the main road between the Club and Pacific Timber Company at Foxwood by a driver, sometime after 3 a.m. the next morning. The driver alerted the security officer, one Wewe.

Wewe gave evidence that about 1.20 a.m. three men spoke to him at his office. He identified them as Fred Osili, Patrick Asia (who had a small iron axe hanging from his neck) and a man he called Fred (and also Frazer) Lausao, all three of whom had been drinking under a mango tree nearby. Wewe noticed that they behaved and spoke as if drunk. He identified the appellant and Asia (who was indicted with him) in court. Nothing turns on the discrepancy between the spelling of the appellant’s name in the title of the proceeding and the evidence,

Wewe’s evidence was that when the driver told him about the man on the road he went to him and noticed injuries which included loss of hair from the back of the head and hair on the road. Lovana was subsequently taken to hospital

The three men referred to by Wewe had come from the Club with one Peter Malachi and were on their way to join a game of kura at the Labourline. Fred Osili is the full brother of the appellant. His evidence was that the four of them (Frazer. Peter, Patrick and himself) left the Club when the bar closed about 11.30 p.m., though the regular closing hour was said to be 10.00 p.m. He says that after speaking to Wewe. Peter Malachi went off to bed at Osili’s house and the other three went on. They got to Labourline where a game was in progress in front of the house of one Sale, who says that the appellant played until dawn. He could not say when they arrived. The game had started about 10.30 and he could only say that it was not too long before they arrived together.

The Crown had charged both the appellant and Asia. The critical evidence against Asia had been furnished by Osili but this witness contended, at the trial, that his evidence against Asia had been false and obtained from him by duress. He was declared hostile but under cross examination adhered to his assertion and in these circumstances the learned trial judge rightly ruled that his evidence must be regarded as unreliable. It followed, and Palmer J, so ruled, that Asia had no case to answer.

The evidence against the appellant was, apart from what has already been set out, contained in his cautioned statement of 8 April 1992. This statement, after recounting matters which have no bearing no the case, goes on in pidgin to the following effect. After Fred had paid for some beer, the party, Patrick, Fred, himself and a fourth man whom he calls Jack, went to Fred’s house where they continued to drink. He evidence is that Jack stayed at the house because he was too drunk, and the other three went to play kura at Foxwood Labourline. He says that they met a security man along the main road and that later they met a man who shouted from along the road. His statement was that Patrick said, “Oh, that’s the man.” His statement continues to the effect that Patrick went first and he went behind him with Fred behind himself. Patrick, according to the statement, struck the man with the axe on his right hand and at the same time he hit the man with his left hand on his chest. The statement is to the effect that the man fell down and he, Frazer, kicked him with his left leg on the man’s right leg and that Patrick hit him on the head with the axe whereat the man shouted loudly, “hey”. The statement is that he stepped back and watched Patrick continue hitting him with the axe, but he did not know what part of his body the axe was hitting. The final relevant statement is that he got a 2 x 1 timber and hit him on the side of the leg.

The appellant gave evidence on the voir dire that the account of how the man was “killed” was given to him by the police and that none of the statement which incriminated him was from him. The word “killed”, as frequently occurs, obviously meant, in this context, injured. He claimed on the voir dire that a police officer named Filia made threatening gestures, pushed his head and threatened to put him in the cells for five months unless he talked. The learned trial judge found that his statement was voluntary and admitted it in evidence, obviously preferring the evidence of the police.

The passage, the effect of which is set out above, is a clear and specific admission by the appellant of a series of assaults in company with Asia. The assaults described are consistent with some of the injuries sustained by Lovana, notably an injury to the right forearm and to the back of the head. However, it is submitted by Miss Samuel for the appellant that Palmer J. gave it too much weight in the absence of corroboration citing DPP v. Hester (1973] A.C. 296; (1972)3 All E.R. 1056. This case concerned the evidence of a girl of twelve on oath of indecent assault. It was supported by the unsworn statement of her sister aged nine which was admitted under s. 38(1) of the Children and Young Persons Act 1933 (UK). It was held by the House of Lords that the unsworn evidence could be corroborated by the sworn testimony of the complainant so as to satisfy the requirement of that provision; and that the sworn testimony was corroborated by the unsworn statement. In other words, there is no general rule against mutual corroboration. The Crown’s appeal was however dismissed because there had been no warning of the danger of convicting on the evidence of children of tender age. Hester really has no relevance for present purposes.

Miss Samuel could point to no positive requirement of corroboration of confession statements and indeed there is none, if one excepts the decision of the High Court of Australia in McKinney [1991] HCA 6; (1990) 171 C.L.R. 468. Indeed, in Carr [1988] HCA 47; (1988) 165 C.L.R. 314, that court had denied the existence of a universal rule that in every case where uncorroborated police evidence of a confession is tendered and challenged, a warning is mandatory, meaning of course a warning of the danger of convicting on the uncorroborated confession or testimony. To the same effect was Duke [1989] HCA 1; (1989) 63 A.L.J.R 139. This view had indeed obtained since Ross [1922] HCA 4; (1922) 30 C.L.R, 246. In our opinion, that rule is sound and should be accepted as the law of Solomon Islands, despite the recent formulation of a contrary general rule relating to confessional statements made n police stations in McKinney. The three categories in which there is a rule of practice that a warning be given are those of accomplices, complainants in a sexual case and children. Outside these categories the need for a warning will depend on the circumstances: Spencer [1978] A.C. 128 at p. 141 per Lord Ackner in whose speech all of their Lordships agreed. This however is not to deny that the circumstances may involve some inconsistency between proven facts and the confessional statement, or some other reason for doubt as to the reliability of the confession. In such situations, there may well be “a perceptible risk of miscarriage of justice” which would call for some evidence supportive of the confession. We take that phrase from the dissenting judgment of Brennan J, in McKinney which was a majority decision of four justices against three,

In this case it is suggested that the time factors and the sequence of events cast doubt on the critical part of the appellant’s cautioned statement. That statement clearly put the attack on the victim after the four men left Wewe on their way to the Labourline. Wewe had a clock and as he timed their arrival at about 1.20 a.m. and the conversation with him does not seem to have been long, the encounter with the victim may be approximately timed at about 1.30 a.m. for it was not far from where the three men left Wewe. The Club closed at about 11.30 p.m. That leaves a period of some two hours before the assault on the victim. Lovana has no recollection of the events of 27-28 March after sometime when he was still drinking at the Club and there is no witness who swears to seeing him until the truck driver. Koto, found him on the road. It is a reasonable inference that he got to that position on his way home to Foxwood where he lived. If the Club closed at 11.30 p.m. or earlier and he started for home immediately, he might well have been seen by people using the road. There had been people at the Anglican Church not far away to about midnight watching a film. Obviously he filled in the time somehow and somewhere - either continuing drinking or perhaps asleep.

There is nothing inherently improbable in this and nothing inconsistent with the cautioned statement. On the other hand, the account in the cautioned statement speaks of an axe blow to the head and one to the right hand. This is consistent with the evidence of Wewe that he saw hair on the road and no hair at the back of the head of the victim and a cut on the right arm with the bone smashed. We see no circumstance which would cast doubt on the reliability of the confessional statement. The appeal against conviction must therefore be dismissed.

Miss Samuel also submitted that the sentence was excessive and she relied upon the case of Nemia (CC 24 of 1993) who received 18 months for this offence. The injury sustained by Nemia was far less serious than those inflicted in this case, being confined to a fractured arm. The sentence for this offence is a maximum of 14 years. It was a cowardly attack upon a wholly defenceless man made incapable by alcohol. There is no suggestion of provocation and it was an attack in concert. No motive was shown for the attack but it may be that something had occurred earlier in the evening which would provide an explanation, for the appellant’s cautioned statement records Patrick as saying, “Oh, that’s the man.” Be that as it may, on the evidence before Palmer J. it cannot be suggested that the sentence imposed in this case was manifestly excessive. Leave to appeal against sentence must therefore be refused.

By the Court
(P.D. Connolly P.)