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Baeoro v Regina [2011] SBCA 6; Criminal Appeal 11 of 2010 (9 May 2011)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION: Appeal from Judgment of the High Court of Solomon Islands (Mwanesalua, J.)

COURT FILE NUMBER Criminal Appeal Case No. 11 of 2010 (On Appeal from High Court Criminal Case No. 308 of 2008)

DATE OF HEARING: 2 May 2011
DATE OF JUDGMENT: 9 May 2011

THE COURT: Sir Robin Auld P
McPherson JA
Williams JA

PARTIES:

BAEORO
Appellant

V

REGINA
Respondent

ADVOCATES:
Appellant: Stephen Barlow & Anderson Kesaka for Appellant

Respondent: Andie Driu & Ricky Iomea for the Respondent

KEY WORDS: Criminal Law – Murder – Intoxication – Rejection of Expert
Evidence on Intoxication

EX TEMPORE/RESERVED: RESERVED
ALLOWED/DISMISSED: Dismissed
PAGES: 1 - 9

JUDGMENT OF THE COURT
BAEORO – v - REGINA

The appellant appeals against his conviction for murder. The principal ground of appeal is that the learned trial judge wrongly excluded evidence from an expert said to establish at least a doubt that the appellant had the necessary intention to kill or cause grievous bodily harm because of his degree of intoxication. It was also asserted that the trial judge failed to properly consider all the evidence of intoxication and failed to properly apply the law in relation to intoxication. It was also submitted that the verdict was unsafe and unsatisfactory.

The appellant admitted on oath in the witness box that he stabbed the deceased. There was also no dispute that the stabbing was the cause of death. The only issue at trial was whether the appellant had the requisite intention to kill or cause grievous bodily harm. The defence contended for a verdict of manslaughter.

The following facts are not in dispute:

(i) The appellant went to an area near some flats close to the sea opposite the Town Ground in Honiara at about 6 p.m. on 15 December 2007 to sell Kwaso which he had brewed;

(ii) The appellant remained at that area until 4 a.m. on 16 December 2007 and during that time consumed some of his Kwaso. He also drank something described as “hot stuff”;

(iii) The deceased, Frank Parahu, arrived at that area around 3 a.m. on 16 December 2007;

(iv) A fight broke out between the deceased, the appellant and some of the appellant’s associates;

(v) The appellant punched the deceased to the ground and then, with others, chased the deceased towards the main road;

(vi) The evidence of the appellant was that he pulled a knife from the back pocket of his jeans with his right hand and stabbed the deceased in the back. The medical evidence was that there was on the surface a stab wound 23 mm long and that the blade entered the left atrium of the heart.

There was no clear evidence as to the quantity of alcohol consumed by the appellant between 6 p.m. on 15 December and the killing in the early hours of the following morning. The witness Noliasi gave evidence that the appellant and his mates were drinking the “whole night”. He also gave evidence that the appellant was drinking at about the time of, and specifically shortly before, the killing. The witness Gavutu gave evidence she saw the appellant and others drink something shortly before she saw the appellant and others chasing the deceased. When asked about the appellant’s speech she answered: “It was like he was drunk.” That expresses a conclusion which was inadmissible. Of more significance was her next answer when she said he was “speaking fast.” That is hardly indicia of intoxication. She also said the appellant was “walking steadily.” The witness Waitaki gave evidence he saw the appellant and others drinking Kwaso not long before the killing.

The appellant gave evidence as to his drinking on the night in question. He said he brewed the Kwaso at home and placed it in 300 millilitre bottles. He said his brother told him he drank five and sold three. He gave evidence he also drank some unidentified “hot stuff”. Later he was specific in evidence under cross-examination that he drank two bottles of Kwaso that night. It is clear, and the evidence was accepted by the trial judge, that the appellant had been drinking Kwaso in the period leading up to the killing.

There was evidence, as noted by the trial judge in his reasons, that the appellant “exhibited no signs of drunkenness, such as staggering, swaying uncontrollably and stumbling that night.” As noted above when the witness Gavutu was asked about indicia of intoxication, her significant reply was that he was “walking steadily.” Counsel for the appellant sought to gain mileage from the fact that the trial judge did not specifically refer to the evidence of Gavutu, particularly her evidence that the appellant was drinking shortly before the killing. There is nothing inconsistent between the judge’s findings and the evidence of Gavutu; indeed his finding of no indicia of intoxication is an acceptance of her evidence that he was “walking steadily.”

Further, again as noted by the trial judge, the appellant gave “clear accounts of the events which occurred from the time he arrived at the flat until he stabbed the deceased.” The appellant’s evidence was that he was “surprised when he (the deceased) came and challenged me.” The deceased said “that small boy you too smart.” The appellant said “even though I am small, try me.” Then the deceased said “wait for me.” The deceased then went away and came back with Fugui and “then we fought.” The appellant stood up and said “oh that’s the boy” and then hit him with his hand. When asked what he next remembered he answered “that we chasing him, all of us were running but I was the one who was running first.” He said they chased him to the main road where they caught up with him. His evidence went on that he then stabbed the deceased with his knife. He took the knife from his jeans.

Under cross-examination the appellant said the knife was in his right hand. He was asked to demonstrate how he stabbed the deceased and he stood up in the witness box and demonstrated. He said he was “so drunk” he could not say how far behind the other boys were when he stabbed the deceased. He also said he was angry with the deceased because he was “very drunk” but he could remember the fight and what he had done.

In evidence in chief the witness Fugui said that after the stabbing the appellant said to him “Don’t tell anybody that I have killed that man because if I go to prison and I come out, I’ll kill you too.” He said may be was mistaken or heard it wrongly. Under cross-examination he said those words were used but he didn’t really understand “whether he was talking about that fight.” When specifically asked whether he could be mistaken that the words “when I come out I’ll kill you too” were used, he replied “I think they are wrong.” Under re-examination he said the words were spoken in the Lau language.

The witness Noliasi said that after the stabbing, the appellant said to “to the man who was drinking with him” in the North Malaitan language “You don’t tell on me.” He was not cross-examined by Counsel for the appellant about that statement.

The witness Gavutu gave evidence that after the stabbing the appellant said to “that boy” that “he would kill him with that knife.” Again Counsel for the appellant did not cross-examine about that. In his reasons the trial judge found that after the stabbing the appellant “warned Fugui not to report him.” It is clear given the evidence of Fugui, Noliasi and Gavutu, that the judge was satisfied a threat or warning was made but given the various accounts he did not, or could not, make a finding as to the precise words used by the appellant. But that does not detract from the fact that a finding was made that the appellant so understood what he had just done to warn a witness.

Following those findings, the trial judge went on:

“This Court is of the view that the Prosecution have proved beyond reasonable doubt that Baeoro had the specific intent to cause grievous bodily harm to the deceased. Further, Baeoro was not intoxicated when he stabbed the deceased to death on 16 December 2007.”

It was submitted that the finding in the second sentence was contrary to the evidence. When the Judgment is considered carefully that is not so. Previously in the reasons the judge had used the terms “drunk” or “drunkenness”. This was the first and only time he used the term “intoxicated”. Clearly he was referring to s.13 of the Penal Code which provides that intoxication is not a defence to any criminal charge, but may be taken into account for the purpose of determining whether the person charged had a specific intent, here intent to kill or cause grievous bodily harm. When the two quoted sentences are read together, the judge was merely saying that the appellant was not intoxicated to the extent that he could not form the intent to kill or cause grievous bodily harm.

The submission that the conviction was unsafe and unsatisfactory was largely based on the contention that there was a misdirection in the following passage in the reasons:

“The prosecution must prove beyond reasonable doubt that Baeoro had the requisite intent for murder and that he was not drunk at the time of the stabbing, before he can be convicted of murder. However, if he was convicted of murder, but he was drunk from alcohol at the time of the stabbing, he will only be guilty of manslaughter.”

The first sentence is more favourable to the accused than is the true position (if the requisite intent is proved the prosecution does not have also to prove he was not drunk) and the second sentence is confusing in that it talks of convicting of murder but being guilty only of manslaughter. The language used was unfortunate but it is clear from the subsequent reasoning, referred to above, that the correct test was ultimately applied. The sentences in question do not in the circumstances render the conclusion that the appellant was guilty of murder unsafe and unsatisfactory.

The defence sought to lead evidence from Professor Coyle, said to be an expert on the effects of the consumption of alcohol on the functions of the human body. His evidence was taken on a voir dire to determine the question of admissibility. The witness was not available to give evidence at trial if it was ruled his evidence was admissible. In consequence it was agreed that the ruling on admissibility should be deferred until final submissions, and if the judge ruled the evidence admissible, the evidence taken on the voir dire would be treated as evidence at trial.

For reasons included in his final reasons, the trial judge rejected that evidence. The appellant contends that he was wrong in doing so. The submission on behalf of the appellant was that the evidence in question had the ability to affect the resolution of the facts in issue at trial relevant to whether the appellant formed the specific intent to kill or inflict grievous bodily harm.

Professor Coyle admitted his evidence could not directly answer that question. He said in evidence:

“I do not give evidence on issue of intent that is a matter for lawyers to determine. I would not presume to give evidence on intent; I would simply give evidence on the effect in this case of alcohol on the person’s capacity to form a plan of action the higher cone ability processes, but intent, that’s not for me to raise.”

One of the problems arising from that answer is identifying the difference, if any, between capacity to form an intent to act in a specific way and capacity to form a plan of action. In most instances from the legal prospective there would be no difference.

The submission on behalf of the prosecution at trial was that the evidence had no probative value and should be excluded. The trial judge essentially accepted the prosecution submission and decided to act under s.136 of the Evidence Act 2009 and exclude the evidence on the ground that “its probative value was outweighed by its prejudicial effect.” That is a test more directed to excluding evidence against an accused person; where the evidence is of little probative value but highly prejudicial to the accused it should be excluded. Here the real reason for excluding the evidence was that the evidence had no probative value on the issue of the appellant’s intent and if anything would tend to cloud resolution of that issue.

In broad terms, the trial judge accepted prosecution submissions that:

(i) The opinion of the witness was based on a number of assumptions not supported by other evidence;

(ii) The witness had not heard or read any of the evidence given at the trial and his opinion was not based on evidence at trial.

As is made clear by s.13 of the Penal Code, intoxication does not automatically mean that a person cannot form a specific intent; as is often said, a drunken intent is nevertheless an intent. Experiences in the courts shows that the effect of alcohol on a person’s capacity to form an intent varies considerably from person to person. That underlies the weakness in the evidence of Professor Coyle. His evidence that “an individual with above 0.2% blood alcohol reading cannot plan any course of action requiring forethought” is not consistent with evidence regularly given in courts of law. Many people with confirmed readings well above that have carried out detailed activity requiring forethought and planning. That is why evidence of the type sought to be led from Professor Coyle must be specific to a particular individual in particular circumstances. The absence of that specificity is the real weakness in the evidence of Professor Coyle and is why his evidence is devoid of probative value.

It follows that the trial judge was justified in rejecting the evidence on the ground it had no probative value and his doing so by referring to s.136 was unnecessary and inappropriate. But it did not amount to appellable error.

During argument in this court, counsel for the appellant referred to s.127 of the Evidence Act and submitted that made the appellant’s statements to Professor Coyle on which he based his opinion (the history given by the appellant) evidence of the facts stated therein. As this Court has concluded the evidence of Professor Coyle was rightly rejected, it is not necessary to rule on that submission.

It was clearly open to the trial judge to find that, though the appellant had been drinking Kwaso, he was capable of forming, and in fact did form, an intention to cause the deceased grievous bodily harm. The appellant’s actions at the time, his ability to give a clear account of those actions, and the absence of indicia of intoxication sworn to by other witnesses, combine to provide a substantial basis for the findings made by the trial judge. It has not been shown that the trial judge failed to consider all the evidence of intoxication, nor that he failed to apply properly the law in relation to intoxication.

Having considered all the evidence in this case, though as noted above, there was some looseness of language in formulating the reasons for conviction, the conclusion must be reached that the verdict is not unsafe and unsatisfactory.

The sentence for murder is mandatory life imprisonment: Section 200 Penal Code. That was the sentence imposed on the appellant on 13 August 2010.

In unreported judgments in the matter of Mostyn Ludawane delivered 15 September and 5 October 2010, the Chief Justice considered the impact of s. 73 of the Correctional Service Act 2007 on the imposition of a mandatory life sentence. His Honour concluded that a sentencing judge in those circumstances had a discretion to make a non-binding recommendation as to release on licence for the assistance of the Parole Board.

Those judgments came after the life sentence was imposed in this case and this Court is asked to send the matter back to the trial judge for him to consider making a similar recommendation in the exercise of his discretion.

It would not be appropriate for this Court to do so as there is no error in the sentencing process. The Parole Board constituted pursuant to s.73 has the function of making recommendations to the relevant Minister as to the release on licence, inter alia, of a person serving a life sentence. The section states that the Board is to determine its own procedures, but Regulation 206 requires the Board to consult with the Chief Justice and the trial judge if available before releasing a person sentenced to life imprisonment. Whilst there does not appear to be any specific provision in the Act or Regulations giving a prisoner the right to make an application to the Board, undoubtedly the Board would have to respond to such an application.

If no recommendation was made of the type referred to in Ludawane, and that would include all prisoners sentenced to life imprisonment before October 2010, then the Parole Board should consider an application for release made by a prisoner after serving a reasonable portion of the sentence.

The appeal should be dismissed.

Sir Robin Auld
President

McPherson, CBE, JA
Member

Williams JA
Member