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Thugatia v Reginam [2013] SBCA 5; Criminal Appeal Case 21,22,23 of 2012 (26 April 2013)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

[1] The three appellants were jointly charged with the murder of Mathew Manegaua on 9 January 2010 at Tenegau village, Aola, East Guadalcanal. All three pleaded not guilty. In a judgment given on 13 July 2012, all were found guilty and sentenced to life imprisonment.

[2] Dickson Buare (Buare) is the older brother of George Bosa (Bosa) and both come from Balo village. Patterson Thugatia (Thugatia) is their cousin and is from a nearby village of Vavalu. The prosecution case is that Buare and some others had gone at about midnight to Balo village where wedding celebrations were taking place. Later, at about 3:00 am, Buare was told that the deceased was being abusive and threatening people saying he would 'cut out their bellies'.

[3] The judgment continues the narrative:

"On hearing what the boys said, Buare got two stones and, along with other boys from Balo village, went to attack the deceased. Fortunately for the deceased, he escaped into the bush. Buare and the boys then erected a road block in the middle of Balo village to stop the deceased coming back into the village. The deceased did not come back to the middle of Balo village but re-emerged behind Buare and his boys on the road which led from Balo to Tenagau village. Buare's record of interview shows that the deceased stood on the road halfway between Balo and Tenegau and called out to Buare and his boys to come at him. Buare and his boys responded by calling the deceased to come to them. It is clear that both sides were challenging each other to a fight.

After these challenging calls, the deceased went to Tenegau and sat at the veranda of Rose's kitchen and continued challenging Buare and his boys to come at him. It is not clear who these boys were but from the evidence there can be no doubt Bosa and Thugatia were among them."

[4] This challenging continued until Thugatia approached the deceased at Rose's kitchen followed by Bosa and then Buare. Witnesses described how the three of them pulled and pushed the deceased to where some betel nuts and bananas were growing. The description of what happened amongst the betel nut trees came entirely from the record of a police interview of Buare under caution and from the unsworn statements of all the accused from the dock.

[5] The judgment summarises the details which came from that interview:

"Thugatia went [to Rose's kitchen] and held the deceased's hand and pulled the deceased towards him and at the same time grabbed a knife which was at the spot where the deceased had been sitting down. Buare said that he then went to the back of the deceased and pushed him. It was then that the struggle started between the deceased and the three of them.

During the struggle, Buare told the deceased to go back to Balo and explain to the people why he was shouting at Balo. Buare said that they struggled until they reached some betel nut trees. He said the deceased then grabbed a betel nut tree and at the same time he tried to grab the knife from Thugatia but could not do so because Thugatia lifted the knife so that the deceased was not able to reach it. Buare said that he saw that Thugatia was unbalanced so he (Buare) managed to get hold of the knife from Thugatia and swung the knife wildly at the deceased. Buare said that he aimed at the deceased's left hand and that he wanted to cut the deceased's hands so that the deceased would not come and assault him again.

Buare continued that if he did not cut the deceased's hand, the Balo community would not be free from the deceased's criminal activities. He said that the deceased had already assaulted him with a knife and had threatened his wife and children saying he would cut off their heads and place them at sacred places and would burn down his house.

Buare admitted in his record of interview that he meant to cut off the deceased's hand but he did not mean to kill the deceased. He said if the deceased was left with one hand, he would not be able to fight anyone any more."

[6] After this, the accused all left the scene. The deceased's arm had been completely severed at the elbow. He was taken to the medical centre where he died from loss of blood from his injury.

[7] All the accused appeal against conviction. In the High Court, the admissibility of the record of Buare's interview was challenged and there was a trial on the voir dire. The grounds of appeal pursued before this Court were:

" 1. That the learned trial judge erred in law in rejecting, as he did, the appellant's objection to the admissibility of the appellant's record of interview in holding that the appellant fully understood the pidgin language, that the appellant properly understood the caution given to him prior to the appellant's interview and that the interview was voluntary and fair.

2. In the alternative, that the learned trial judge erred in holding as he did that self defence was the defence to be made by the appellant.

3. Further and in the alternative to 2 above, his Lordship erred in failing to consider the question of whether the Crown had negatived self defence."

[8] Thugatia and Bosa each filed amended notices of appeal with identical grounds:

"1. His Lordship erred in applying a test that if the appellant was part of a joint criminal enterprise to commit an assault on the deceased, that was sufficient to constitute guilt of the offence of murder on the basis of section 22 of the Criminal Procedure Code Cap 26.

Further or in the alternative

2. His Lordship erred in failing to consider properly or at all whether the assault upon the deceased with a knife so as to cause him serious harm or death in the execution of a joint criminal enterprise to assault was within the contemplation of the appellant.

3. His Lordship erred in using evidence of the record of interview of the co-accused Buare against the appellant."

Buare's Appeal

Ground 1

[9] As is indicated in the first ground, the objection to the interview was that it was not voluntary and fair because it was conducted in pijin, a language Buare did not fully understand, with the result that he did not understand the caution. Mr Valentitabua for Buare explained that his case was not that the appellant did not understand pijin at all, but that he did not understand it fully or properly. At the trial, the accuracy of the recorded questions and answers was not challenged but it was suggested that they showed that the appellant had failed to understand his right of silence under the caution. During the trial an interpreter in the Doku language was provided for Buare at the request of his counsel.

[10] The police interview had been conducted in the presence of two lawyers from the Public Solicitor's office who also spoke to the appellant in pijin. The appellant, speaking in Doku at the trial, explained on the voir dire that the lawyers advised him in pijin; "Don't say anything to the police".

[11] The record of interview shows that in response to a question about his understanding of "white man language" he said, "I don't really know well". The relevant questioning by his counsel in the trial in respect of the advice from the two lawyers, was as follows:

"Counsel... you told the court that two lawyers came to see you. You remember that?

Yes

What did they tell you?

Don't say anything to the police.

What was your understanding of that?

I don't really know how the police and the lawyers worked.

My question is what was your understand about what the lawyer told you?

The lawyer said just don't say anything to the police or tell them anything -- any stories.

The judge then asked: "What was your understanding of the meaning of what the lawyer said?

Just don't say anything to the police, that is what the lawyer said.

Counsel - Did you say anything to the police?

I just followed the lawyers and I didn't say anything to the police.

So in your understanding you did not say anything to the police. Is that what you are telling the court?

I don't know

You were asked whether the police read back your statement to you?

Yes

You remember that?

Yes

Did you understand what they were reading back to you?

I don't really understand

What did you not understand?

I don't really understand some of the words in the white man language.

Mr Buare when you say "white man language" what do you mean?

Pijin.

[12] Section 171(3) of the Evidence Act provides:

"(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency..."

[13] Buare's counsel points out that, if the interview is to be fair, the requirement should not merely be reasonable fluency. What is necessary, if the caution is to have any value, is the person's understanding of the true meaning of the formal language of the caution. Mr Valenitabua directed the Court's attention to the Northern Territory case of R v Anunga and others [1976] 11ALR 412 in which the court lay down guidelines to ensure aboriginal people fully understand their rights under the caution. He suggested such guidelines should be followed in this country and that failure to do so should render the interview inadmissible. We have little doubt that any judge exercising his discretion to admit a challenged confession will take full cognisance of the need to be satisfied that the accused understood the words and meaning of the caution although we accept that if the police questioned an accused about his actual understanding of the caution in the manner suggested in Anunga's case, it would be of considerable assistance to the trial judge in the event of a challenge. .

[14] In this jurisdiction any trial judge has a discretion to refuse to admit evidence of statements made by an accused under caution if he considers they have been taken unfairly. It is clear in the present case that the learned judge formed the opinion that the accused was fairly interviewed and clearly appreciated his right to remain silent as was told to him both by his lawyers and by the police in the caution. As any lawyer appreciates, it is not unknown for an accused person, despite being told to say nothing, to choose still to answer police questions.

[15] In a carefully reasoned ruling on admissibility, the judge pointed out that section 169 of the Evidence Act gives the court a discretion to refuse to admit evidence of a confession adduced by the prosecution where the circumstances in which it was made would make it unfair for it to be tendered in evidence against the accused. He explained the discretion in the frequently quoted words from R v Jeffries [1946] State Reports 312:

"It is a question of degree in each case and it is for the presiding judge to determine in the light of all the circumstances whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."

[16] The trial judge continued:

"Section 168(2) of the Evidence Act provides that, to be admissible, it must be proved beyond reasonable doubt that the confession has been taken voluntarily. To determine whether the confession was obtained voluntarily, section 168 (3) has set out matters which may be taken into account. Among those matters are the age, personality and education person. ... In my view, the matters specified under section 168 (3) are not the only matters which need to be taken into account in determining the voluntariness of a confession. The requirements of the Judges Rules must also be taken into account."

[17] Having correctly directed himself he went on to consider the question of whether the appellant understood pijin and concluded:

"I am satisfied beyond reasonable doubt that the accused understands pidgin very well and that he understood very well the questions put to him during the interview at Rove on 10 January 2010. I am satisfied that the answers he gave were given freely and with the knowledge that he was not obliged to give the answers. He was advised by [the two lawyers] not to say anything to the police. He understood the advice yet chose to ignore it and confessed to the police. I am satisfied he understood both pidgin and the caution given to him at the commencement of, and during, the interview."

[18] We are satisfied the learned judge applied the correct test following a careful analysis of the evidence given under the voir dire. He had the advantage, not available to this Court, of seeing and hearing the witnesses and an appellate court will only interfere with the trial judge's findings of fact if they are clearly wrong. This ground of appeal fails.

Grounds 2 and 3

[19] These grounds both deal with the burden and standard of proof when self-defence is raised by an accused and we deal with them together.

[20] It is trite law that, when an accused claims he was acting in self-defence, the burden is on the prosecution to disprove it to the criminal standard Lobell [1957] 41 Crim App R100. It was explained in DPP v Walker [1974] 1WLR 1090,1094 that:

"Since Woolmington v DPP [1935] AC 462 it has been clearly established that once the evidence discloses the possibility that the fatal act was done in self-defence, a burden falls upon the prosecution to disprove that fact, that is to say, to prove beyond reasonable doubt that the fatal act was not done in self-defence."

[21] The basis of the claim of self-defence was that the knife had been picked up by Thugatia from the place where the deceased was sitting and that, once the accused had pushed and pulled him into the betel nut trees, he was trying to get hold of it from Thugatia. Instead, Buare took it and swung it wildly at the accused to prevent him attacking him (Buare).

[22] In his judgment, the learned judge noted that Buare did not deny cutting off the deceased's arm but claimed it was done in reasonable self-defence. The judge correctly explained that, "Under the common law, it is lawful to use such force as is reasonably necessary in order to defend one's person against an attack" Palmer v R [1971]AC 814, 831; Rachel Tobo v Commissioner of Police, Criminal Appeal No 1 of 1993, and adopted the passage from Chisam v R [1963] 47CAR 130, that "there must be a necessity for the [force used] or, at least there is an honest belief based on reasonable grounds that there is such a necessity". He then correctly formulated the question as whether chopping off the deceased's hand was reasonably necessary in order for Buare to defend himself against the deceased.

[23] In a jury trial, the judge is obliged to explain to the jury that the burden is in the prosecution to disprove self-defence and where, as here, the trial is by judge alone, the judge must remind himself of that requirement; R v Wheeler [1967] 52 Crim App R 28,30. It is good practice specifically to state it in those terms (as he did, at paragraph 12, when considering the alternative defence of provocation advanced by Buare) but other words maybe used as long as it is clear the judge has evaluated the evidence of self-defence in that way.

[24] In the present case, the learned judge explained his decision in the following terms:

"So the question here is whether chopping off the deceased's hand was reasonably necessary in order for Buare to defend himself against the deceased. I have already referred to Buare's record of interview, which I have accepted as an accurate and truthful account of the events, which occurred that morning immediately before the assault on the deceased. I need not repeat them here. Suffice to say that I find nothing in his record of interview, nor in the evidence produced in this trial generally, which convinces me that Buare had found himself in a situation where it was reasonably necessary to defend himself against the deceased by chopping off the deceased's hand."

[25] We consider that an unfortunate passage. The last sentence could be read as suggesting that the defence bore the burden of convincing the court of the necessity to inflict the injury in order to defend himself. In the absence of any other reference to the burden of proof, it amounts to a possible misdirection and, had there been nothing more in the evidence, may have been sufficient for the appeal to succeed.

[26] However, the picture painted by the evidence from Buare's interview and the inconsistent account in his unsworn statement made it clear that Buare's motive and intention when inflicting the injury to the deceased was not self-defence but an attack. The right to defend oneself depends on the nature and degree of actual or imminent danger at the time the claimed defensive force is used. The evidence from Buare was that he was not reacting to the danger at the time but to the previous dangerous and aggressive conduct of the deceased to him, his family and his village and his fear that such danger would continue to occur in the future. It was for that reason he struck the blow to cause injury to the deceased's hand. It was intended to cause such a serious injury that he would be incapable of similar aggressive behaviour in future. Far from being a defensive move, it was an attack by Buare to prevent future attacks by his victim.

[27] This was clear from the words immediately following the passage set out above:

"I am satisfied beyond reasonable doubt that the reason for chopping off the deceased's hand was as stated by Buare in his record of interview, that is, to incapacitate the deceased so that the deceased would not assault him again and to put an end to the deceased's criminal activities and harassment of the Balo community. I reject Buare's defence of self-defence."

[28] Whilst the prosecution must disprove self-defence, that can be achieved by the evidence as a whole both from the prosecution and the defence or from either. We do not set out the relevant passages but the statements by Buare provide overwhelming evidence that his motive never amounted to self-defence but an attack committed deliberately with the support of two others against one man and the learned judge was correct to be satisfied that such a defence was disproved.

[29] The appeal against conviction by Buare is dismissed.

Thugatia's and Bosa's appeals

[30] As we have already stated, the grounds of appeal by these two men are identical and can be considered together. It is convenient to consider their third ground first.

Ground 3

[31] The prosecution case was conducted on the basis that this was a joint attack on the deceased by all three appellants. Having found the appellant Buare guilty, the learned judge directed himself correctly on the law in respect of joint enterprise and moved on to consider the evidence against Thugatia and Bosa. He referred to the incidents leading up to the time the three accused dragged the deceased from the veranda of Rose's kitchen as described by the prosecution witnesses. Included in that account were two references to statements from Buare's interview. In one, he mentioned it to support a statement by one of the eyewitnesses called by the prosecution to which there can be no objection.

[32 The other reference was:

"There is no direct evidence as to why the deceased was pursued to Tenagau. However, in Buare's record of interview, [he] said that the reason why they followed the deceased to Tenagau was to see to it that the deceased went back to Balo village and explain why he was shouting at the village. It is clear from their actions that the accused were determined to bring the deceased back to Balo by force if necessary to do that explaining."

[33] He concluded:

"On the basis of the evidence, I am satisfied beyond reasonable doubt that there was an unlawful purpose; that there was a common intention on the part of Buare, Bosa and Thugatia to prosecute their unlawful purpose and they participated in executing that unlawful purpose. Both Thugatia and Bosa followed the deceased from Balo. Both were seen standing with Buare near Jenny's house immediately before the assault on the deceased. Both came to the deceased while he was sitting in Rose's kitchen and assaulted him in the kitchen. Both were involved in pulling and pushing the deceased to the spot where his hand was chopped off. I am also satisfied beyond reasonable doubt that both Bosa and Thugatia knew that morning that an assault on the deceased was inevitable. They were themselves involved in that assault."

[34] The judge then referred to the unsworn statements from the dock by Thugatia and Bosa, compared them with the evidence of the prosecution eye witnesses of the earlier events and rejected the claim by each accused that he was not present at the time the deceased's arm was cut off. He then explained under the heading 'Finding':

"From Olyn and Rose's evidence, I am satisfied beyond reasonable doubt that Bosa is a party to the assault on the deceased that morning. I reject his dock statement as containing no truth. I also reject the evidence by Peter Maneluga who was called to corroborate Bosa's evidence. I am satisfied Olyn and Rose were telling the truth in their evidence and I accept their evidence as truthful."

[35] Although, when dealing with Thugatia's dock statement, the judge did not find him to be a credible witness and rejected his explanation of the events on the veranda, he did not include him in the above finding. I accept that was simply an oversight as he continued:

"I am therefore satisfied beyond reasonable doubt that Bosa and Thugatia were parties to a joint enterprise in connection with the murder of Mathew Manegaua and accordingly I find them guilty as charged."

[36] The appellants submit that there was no direct evidence against these two accused of what happened after the deceased was dragged from the veranda and the circumstances under which his arm was chopped off. Direct evidence was limited to their unsworn statements, which the judge rejected, and Buare's account, which was not evidence against his co-accused. Their counsel point out that the judgment as a whole makes it clear that the learned judge accepted Buare's account of those events in his police interview and must have used it in deciding Bosa's and Thugatia's guilt.

[37] When dealing with Buare's claim of provocation, the learned judge stated, "Buare's record of interview had been admitted into evidence and I am satisfied it contains an accurate version of what happened that early morning on 9 January 2010". He later added, "I have already said that I am satisfied that Buare's record of interview was accurate and that I have accepted the record of interview as the accurate account of what happened during early morning of the 9 January 2010."

[38] Similarly when considering Buare's claim that he was acting in self-defence the judge stated:

"I have already referred to Buare's record of interview which I have accepted as an accurate and truthful account of the events which occurred that morning immediately before the assault on the deceased."

[39] It is common in a trial of more than one accused for the judge, when dealing with one accused's statement to the police, to accept in determining the case involving that accused, his account of events including, as it often will, his account of the actions of his co-accused. However, the law is clear that the statement of one accused in the absence of another cannot be evidence against the other unless it is later repeated in evidence by the first accused at the trial or accepted by the relevant co-accused. Although Buare made an unsworn statement from the dock, the judge specifically rejected it on the basis that he was satisfied it had been made up simply to support Buare's defence of provocation. The judge's acceptance of the truth and accuracy of Buare's answers in his interview was properly part of the case against Buare. However, those statements were not evidence against Thugatia and Bosa.

[40] Having referred to those statements, it was important that the judge should have specifically explained that they were not evidence against the other two. Not only was no such statement made, but the judge gives no indication of the source or nature of any evidence relating to the part played by Bosa and Thugatia after the deceased was dragged into the betel nut trees. Their involvement could have been deduced by circumstantial evidence but there is no mention of the evidence the judge found proved upon which he based the necessary inferences. Neither is there any mention in the judgment that he regarded that evidence as circumstantial. The only evidence of the part played by these two in the betel nut trees, if any, after the deceased was dragged from the veranda is in their dock statements, which the judge rejected, and in the answers given by Buare in his caution interview the whole of which the judge emphatically accepted. The only conclusion we can draw is that the learned judge treated the account from Buare's interview as part of the evidence against the other two accused .

[41] The Director of Public Prosecutions accepted this conclusion and submitted, as he advised the Court he had also done at the trial in the court below, that the statements by Buare were admissible against the other two as having been made in furtherance of the common intention. He sought to support his stance by reference to the case of R v Fitali and others [1993] SBHC 4 in which Muria CJ stated:

"The general rule is that the statements made by one accused either to the police or to others are not evidence against a co-accused unless the co-accused, either expressly or by implication adopts the statements as his. See R –v- Rudd [1948] Cr App R 138 and R –v- Gunewardene [1951] 35 Cr App R 80. However, the prosecution case is also that the accused were acting in furtherance of a common purpose or a joint enterprise. In that regard, acts and statements made by a party to the common purpose are admissible in evidence against other parties to that joint enterprise. See Archbold, 1993 Edition, Paragraph 15-357."

[42] With great respect to the learned judge, the last sentence provides an incomplete definition of the common law rule and makes the passage, read on its own, seriously misleading. If, as the DPP tells this Court, he based his case against Thugatia and Bosa on the answers made by Buare in the police interview, he was wrong and it appears that the trial judge unfortunately took the same course.

[43] We note that, in Fitali's case, Muria CJ corrected the earlier omission in the next paragraph in respect of acts of the accused when he said:

"It is therefore necessary that there be established by evidence that the accused Peter Fitali had been a party with the other co-accused to carry out the same illegal purpose that is, the killing of the deceased. In other words, the existence of a joint enterprise must first be established. Then it must be proved that the accused were all parties to that joint enterprise and that the acts of the accused were done in furtherance of that joint enterprise or common purpose."

[44] It is important that all counsel understand the rule that the acts or declarations of any conspirator made in furtherance of the common design may be admitted as part of the evidence against any other conspirator. Although it is stated in terms of conspiracy it is not limited to such a charge nor is it necessary for conspiracy to be charged. The first step is to prove that the accused were involved in a common design and then the acts and statements done or made in furtherance of the common design are admissible to all who are parties to that common design. As the definition states, only acts or statements made in furtherance of the conspiracy will be admissible against the co-conspirators. To have been made "in furtherance of the conspiracy" has been described as meaning no more than that the act or declaration must be demonstrated to be one forming an integral part of the machinery designed to give effect to the joint enterprise; R v Reeves [1998] CA unreported 4 December 1998.

[45] In order to determine admissibility, the judge must be satisfied that it was made by a conspirator, that it could reasonably be interpreted as having been made in furtherance of the alleged joint enterprise and that there is some further evidence beyond the acts or statements themselves to prove that the other accused was a party to the conspiracy; R v Jones [1997] 2 Cr App R 119.

[46] Clearly, statements made by an accused in his interview with the police after the conspiracy has been completed or stopped cannot be made in furtherance of it and will never be admissible under this rule against his co-accused.

[47] This was a serious error and the appeal must be allowed on this ground in the cases of both Thugatia and Bosa.

Grounds 2 and 3

[48] Both these grounds relate to the part played by the two accused in a joint enterprise. As a result of our decision on ground three, it is not necessary to deal with them except in a consideration of what we should do in consequence of that decision.

[49] The Judge commenced his judgment with the summary that:

"It is alleged that Buare had caused the injury and, as a result, he was charged as the principal offender while Bosa and Thugatia were charged as parties to a joint criminal enterprise in connection with the murder.

Buare does not deny causing the injury which lead to the death of the deceased [and] ...admits that in doing so he had intended to cause grievous bodily harm to the deceased ... Bosa and Thugatia, on the other hand, have completely denied being parties to any joint criminal enterprise in connection with the murder."

[50] Although the DPP relied on leading (and, it appears, the judge admitting) Buare's statements in evidence against Thugatia and Bosa as being in furtherance of the joint enterprise, it was an essential precondition that he should be satisfied that there was evidence of a common intent shared by the accused. Following the above quoted passage, he moved on to a consideration of the case against Buare. As we have stated, he directed himself correctly on the issue of joint enterprise under section 22 of the Penal Code and then considered the case against Bosa and Thugatia. He properly referred to the evidence of the prosecution witnesses and concluded;

"On the basis of this evidence, I am satisfied beyond reasonable doubt that there was an unlawful purpose; that there was a common intention on the part of Buare, Bosa and Thugatia to prosecute that unlawful purpose and that they participated in executing that unlawful purpose. Both Bosa and Thugatia followed the deceased from Balo. Both were seen standing with Buare near Jenny's house immediately before the assault on the deceased. Both came to the deceased while he was sitting in Rose's kitchen and assaulted him in the kitchen. Both were involved in pushing and pulling the deceased to the spot where his hand was chopped off. I am also satisfied beyond reasonable doubt that both Bosa and Thugatia knew that morning that an assault on the deceased was inevitable. They were themselves involved in that assault."

[51] He goes no further in determining whether the evidence proved they intended or foresaw the likelihood of the serious assault Buare carried out on the deceased shortly afterwards. The conviction of the two co-accused of murder must have been on the basis of Buare's statements in his interview. If the case against Thugatia and Bosa is remitted to the High Court for a new trial, we consider it would be unlikely that they would be found guilty as accessories to the attack by Buare which caused grievous harm and lead to the death of his victim. They would, however, be convicted of a joint assault on the deceased.

[52] They have already served more than two years in custody and, if they were convicted of a joint common assault, would be unlikely to receive a greater penalty. We are satisfied that the correct order is to quash the convictions of both accused for murder and to enter an order of acquittal in both cases.

Order:

[53] The appeal by Buare is dismissed and his conviction and sentence confirmed The appeals of Bosa and Thugatia against conviction are allowed. Their convictions are quashed and an acquittal entered in each case.

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Justice Edwin Goldsbrough
President

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Sir Gordon Ward, JA
Member

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Mwanesalua, JA
Member