REGINA 	

-V-			

EDMOND SAE

IN THE HIGH COURT OF SOLOMON ISALNDS
(BROWN J)
Criminal Case No. 273 of 2016
	
Date of Judgment: 13th September 2017

DPP for Crown
PUBSOL for Defendant

Brown J:
At the close of the Crown case defence counsel made application for a permanent stay of all proceedings by the Crown against the defendant and failing that, argued that there was no case to answer in any event.

The accused had been indicted with following offences
1.	murder of Sir Frederick Soaki
2.	 escape from lawful custody
3.	 murder of Saeni Orea
4.	attempted murder of Chris Orea junior. 

I propose to deal with the application for stay in the first instance, for as relied upon by Mr Lawry for the defence the various statements of Lord Devlin addressing the courts inherent power to address gross abuse of process, have been applied in the Solomon Islands.

“ [para H ] Are the courts to rely on the executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are bought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transfer to the executive of the responsibility for seeing that the process of law is not abused”.
 “ [para D] I do not really understand the argument that maintains that, while the statement must be treated as comprehensive, if there is a gross abuse of process the court can in some way or another protect itself against it. The only way in which the court could act in such circumstances would be by refusing to allow the indictment to go to trial;  and that must mean that there is a fifth ground to be added to the four given by Lord Goddard CJ.” 
“ (para G) from early times the court had inherently in its power the right to see that its process was not abused by a proceedings without reasonable grounds so as to be vexatious and harassing, there can be no doubt that he would have considered his words as applicable to criminal as to civil proceedings.” 

In this case Mr Lawry points to deliberate illegal conduct by the police. He refers to any deliberate interference with a detained suspect’s right to the confidence of privilege communications with his counsel as justifying a stay, as undermining the rule of law not withstanding an absence of prejudice. 
Notwithstanding an apparent absence of abuse of privilege [considered in the decisions relied upon], it has not been clearly shown how this plea arises, here, for since his re-arrest in 2015, it would appear he has had unfettered access to Counsel in the absence of evidence to the contrary.  I do not accept the assertion that the police have been guilty of deliberate illegal conduct.

Defence further relies on assertions of deliberate destruction of evidence, as clear prejudice, depriving the accused of a fair trial. Defence counsel in his well-reasoned argument going to the need for this court to find no case to answer pointed to other matters also supportive of his claim for permanent stay.

The DPP Mr Talasasa, denies circumstances sufficient for consideration of a permanent stay have been shown, rather suggested if the court were to find sufficient aspects of unfairness to the accused have arisen, the proper course would be to allow a new trial so that matters may be addressed.  

Mr Talasasa relies on the principles accepted by the Solomon Islands courts as those enunciated by the Australian High Court where Mason CJ said “ to justify a permanent stay of criminal proceedings, then must be fundamental defect which goes to the root of the trial “ of such nature that nothing that trial judge can do in the conduct of the trial can relieve against it unfair consequences……. the notion of a fair trial is not only in regards to fairness to the accused person but also to the victim as well the public at large. Fairness entails a trial that ensures that accused is convicted, is guilty and acquitted, if innocent. That is what justice is about”. 

More recently in Johansson and Chambers the Queensland Court of Appeal dealt with the situation where much of the police brief was lost including early exculpatory statements of an important prosecution witness and records of interview, police running sheets and notebooks and numerous related records of interview.  In that case the Queensland court accepted that the significant level of unfairness called for a stay

The DPP distinguishes that case for the real criticism here, relates to the witnesses statements missing [some of which were subsequently located) yet witnesses themselves were called. Regard must be had to the situation affecting the absence of proper maintenance of law and order about the country at that time, a situation reflected in the evidence of the police witnesses. For it seemed at Auki, at any rate, the individual police officers administered justice according to their own ways.  Although the situation on the ground at Auki did not reflect acceptable levels of police procedure perhaps, through fear engendered by this killing, I am not satisfied there has been any significant level of unfairness to the accused by reason of absence of statements for instance which may not be addressed in the trial by the weight to which the court should place on particular the witnesses evidence in those circumstances. And such real criticism may address the weight the court is to place on the evidence.  The offences occurred some 14 years ago. 
None of this argument appears to reflect the expressed breakdown of police standards or process at the time of these offences offences in 2003 during the time of the violence and disorder [“the tensions”] that gripped Solomon Islands between 1998 and 2003 before the intervention.  The Prime Minister’s request recognised a regional assistance mission to Solomon Island’s need following upon the “tensions” and that was common knowledge. So this court must be on guard lest too high a standard of police practice and procedure be expected commensurate with the need to be fair to any accused who may have been seriously abused by such failed process at the time, abuse which gives rise to “significant risk of conviction of an innocent person”. Whilst Mr. Lawry goes beyond asserting police investigation was deficient, I do not accept his more serious criticisms.  

To quote Fitzgerald P  “While the measures I have mentioned will not, and cannot, removal of the adverse effects of the unexplained dilatoriness  in pursuing this matter it must be borne in mind that a decision on applications of this sort requires a proper balance of the interests of the accused and the public interest. The power to grant a permanent stay, which is discretionary, will be used only in most exceptional circumstances in criminal proceedings; a case must be an extreme one to warrant a permanent stay” (at 130)
These principles guide me in the exercise of my discretion. 

 The underlying management of the investigation into the offences was initially carried out by the RSIP until with the advent of RAMSI, it became involved as became apparent in this trial. This involvement has given cause to criticise the apparent absence of original statements, later found to be with RAMSI.   
Mr Laurie has also criticised the “ambush” by the prosecution for material and witnesses were sometimes brought before the court at short notice or without having opened on the purported evidence beforehand.  I do not propose to revisit all the objections raised by Mr. Laurie during the course of the trial for I am satisfied he had proper opportunity to address what he saw as “ambush”, difficulties which even cumulatively considered,  I find did not prejudice the defence to that degree to warrant a stay.  

The Malaitan [and it should be remembered the accused is a Malaitan] perspective concerning the RAMSI involvement is recorded in Greed and Grievance- Ex-Militants’ Perspectives on the Conflict in the Solomon Islands, 1998-2003
“The latest “alien” to attract the symbolic opposition of Malaitan kastom is RAMSI. In my discussions with Malaitan ex-militants, kastom was frequently evoked as a challenge to the mission, particularly its policing activities. They point to incidences such as trespassing on tribal lands, breaking into houses without permission, and general cultural insensitivity in the way in which RAMSI police – Australian police in particular – conducted their operations on Malaita. Indeed, many people with whom I spoke on Malaita regard the use of large numbers of armed soldiers and police in a number of failed attempts to capture fugitive Edmund Sae as excessive and tantamount to an invasion of Malaita.” [pages 165,166]
It would not be difficult to envisage divergences arising in the manner in which this investigation was to be carried out after the arrival of RAMSI on the island. The use of this quotation, however should not be seen as acceptance of the assertions, rather as showing reason for dissonance and illustrative of the difficulties faced by the prosecution in gathering material from such disparate bodies.
That said, I am satisfied any suggested failings of the prosecution, are not matters which can be said to be of such oppressive unfairness as understood by right minded persons, looking objectively at the evidence and not swayed by emotion, to warrant a stay.

I propose to deal with the various counts in reverse order.

In so far as the fourth count on the indictment is concerned (attempted murder of Chris Rea Jr at Auki police station on 30 April 2003 contrary to s. 15 (b) of the Penal Code) the thrust of the accused’s no case application is the absence of evidence capable of proving beyond reasonable doubt that the accused had any intention to kill the man.

The accused admits there is evidence that on 30 April he used an automatic weapon to shoot up the Auki Police station and that one of the shots struck and injured Chris Saeni Orea jnr.  Mr Lawry went on to say “the evidence shows that the prisoners had been taken from these cells to a room referred to as the pantry where they were fed. There is no evidence that the area where the cells were, was damaged by bullets. There is no evidence from which the applicant could be taken to know that the prisoners were in the pantry. There is no evidence that the applicant even knew that Chris Saeni Orea was at the police station at all and certainly no evidence that he had an intention to kill him. In fact there is no evidence on which it could be inferred that he intended to kill anyone at all. The Court of Appeal in Alagere v Reginam said:-
“ any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say that there is no other inference available consistent with innocence. Anything less than this is no more than an educated guess. The court went on to repeat what had been said in Shepherd v The Queen; it will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and where it is helpful to do so to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.

The DPP’s submission emphasised the effect to be inferred, that by spraying with a machine gun, in the manner described, an intention to kill was made manifest.
 The evidence by witnesses does suggest the accused said words to the effect, “where are they”. An inference may be drawn that he was speaking of particular police officers. The evidence suggests that no persons were to be seen about the front of the police station when the accused commenced spraying the building apparently indiscriminately in spite of the DPP’s assertion. There is no doubt however that the shooting resulted in the death of Orea and the injury to Chris Saini Orea Jr. The DPP has to satisfy this court by evidence, that the accused had an intention to cause the death of or grievous bodily harm to any person whether such person is the person actually killed or not.
For I am not concerned with the second part of s. 202 of the Code for there is absence of evidence of knowledge in the accused of the whereabouts of these persons in the very rooms struck by the spraying bullets. The intention to cause the death of or grievous bodily harm to any person must be shown beyond reasonable doubt. The Criminal Justice Act 1967 (UK) S. 8 provided that there was no presumption of law that a man intended or foresaw the natural consequences of his acts. In this case I am not satisfied the accused may be seen to have foreseen the natural consequences of his acts in spraying bullets across the front of the building, bullets that would penetrate the building in particular places and by chance, bullets or fragments would hit persons inside, unseen by the assailant. The spraying may reflect an intention to show his ability and power to inflict damage by force through the use of such a weapon, an inference available although inconsistent with the judicially considered “intent” to be found when considering murder or intent to murder.

I consequently accept the defence argument in relation to both count three and four.  A judge is both judge of fact and law.  While precedents to be followed by this court often relate to overseas jurisdictions where juries sit to determine guilt or otherwise of an accused person, a trial judge in this jurisdiction shall be guided by the duty incumbent on a judge in other jurisdictions to put to a jury matters on which the jury could in the circumstances of their particular case, upon the material evidence before them, find for the accused. In this case, in relation to the alternate verdict of manslaughter available under the lesser offence provisions of the Criminal Procedure Code, and as conceded by counsel and upon being satisfied the elements of the offence of manslaughter have been made out beyond reasonable doubt I convict the accused of the offence of manslaughter of Saini Rea at Auki police station on 30 April 2003. The accused is acquitted and discharged on the count of the attempted murder of Chris Saini Orea Jr.

Count 2 – escape from lawful custody. This count may shortly be dealt with for it had been brought under S. 199 of the Police Act 2013, an Act which did not come into force until 2014.  The arrest was made on 6 March 2003. The accused was rearrested on 15 October 2015, and it is not beyond doubt that he had been, to adopt the description used by Matthew Allen, a “fugitive”. The Act however under which he had been indicted came into force on 1 March 2014, for some 10 years after the escape.  He may well have been a “fugitive” but could not have been subject to the offence charged.  I accept the underlying principle that criminal liability is to be determined by the law in force at the time when the acts constituting the offence were done
The no case submission in relation to count 2 is upheld. The accused is discharged in relation to that count.
Count one – the accused has been charged with the murder of Sir Frederick Soaki on 10 February 2003 at Auki Motel, Auki, Malaita Province. He has pleaded not guilty. The killing took place on the evening of the 10th February on the upper floor of the building where the motel was situated. The residential accommodation was along a corridor running from the open space of the lounge and dining area at one end of the building to another end where steps also let down to the ground, adjacent to the entry gate opening to a road. The dining area had a table able to seat a number of persons and that table was close to the principal access to the motel, stairs leading up to the first floor of the building with the door  opening adjacent to where the dining table stood on this particular occasion. In an adjoining room was the kitchen.

The evidence suggests the deceased was shot at close quarters, the bullet passing through his chest and the adjacent wall and perhaps striking a refrigerator in the kitchen. The gunman was masked, said nothing at the time of the shooting and immediately left. 
The issue proposed by the defence is that of the identity of the gunman. The defence cogently had the various witnesses who were with the accused (whom they all knew personally) leading up to the shooting; describe in detail in cross-examination the dress worn by the accused on that evening. There were material differences in their descriptions, both amongst each other and variations during their own cross-examination. The evidence of Colin Ramo, witness to the killing and his wife Rose [who also saw the killer] was also divergent in cross-examination and also with other witness’ evidence about the clothing worn by the accused. The DPP argued the elicited inconsistencies was a product of storytelling culture in the Solomon Islands. He submitted;
“Main details are told and retold for example what happened and who did what to whom it was done what part of the day or night but usually the exact time or distance is not kept, others apart from the characters, are not identified or remembered. And many times depending on the circumstances that prevailed at the time of storytelling the first time a story is told some details are missing or corrected- it does not follow that the storyteller is concocting a story or that it is a false story;  that is how people remember and relate things to others to tend to prove further detail when being asked specifically at a later time. Depending on the circumstances at the time witnesses or onlookers remember details based on what is important to them or remembering main details.”

The main thrust is that detail missing or corrected does not necessarily mean the storyteller has concocted or given a false story. 
I especially have regard to the passage of time since the killing when these witnesses’ recollections are now but memories. The other aspect of course, is that these other police officers with the accused before the killing and some afterwards knew him personally and accompanied him up the road. There may be no reason to remember what he may or may not have worn for they knew him.  The reason now to seek this detail is to seek to show as Mr. Laury has argued, that detail does not correspond with detail remembered by the two witnesses who may be said to have seen the masked killer and with that variance in description, should afford this court just cause to accept the no case submission.
The witnesses, Colin Ramo and Rose did not recognise the shooter who wore a mask at the time of the killing. Although shortly after Rose did recognise him when he was said to have lost his mask. That was corroborated by the evidence of Rose Missimaki who was some distance away, in front of the police married quarters.  Both women knew Edmund Sae.

There are certainly differences over the dress of the accused that evening by Justin Ma’asia, Ronley Oeta, Allen Maelalia and Hickson Malefo to that of the evidence of both Rose Maesubua and Rose Misimake and Colin Ramo.  But those differences in themselves do not dispense with the Crown case which was circumstantial.  In all fairness, it cannot be said to be one of identification, reliant as it is on surrounding facts giving rise to circumstantial evidence of the accused’s role as shooter.

For the evidence is that he had a pistol; he had been heard to threat to kill; the purpose for the walk up the road to the clinic adjacent was known to those others; before the time of the shooting he was accompanied to the clinic by others who were afraid of him; there was heard a shot after he had left them; they apparently came forward to incriminate the accused by expressed reasons of fear of Edmund Sae well after the killing; so accepting the Crown case at its most favourable, I am satisfied there is evidence capable of supporting a conclusion beyond reasonable doubt the accused is guilty.
“the court must take the prosecution evidence at its highest and that means accepting the evidence most favourable to the prosecution when determining whether an accused has a case to answer; the test then is not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty”

The defence has submitted, “ what forensically connects the killing to the applicant? Counsel can find nothing at all. It is respected respectfully submitted that once the identification evidence by Colin Ramo and Rose Maesubua is put to one side, as it must be, the applicant is excluded from the possibility of being the gunman. It follows that taken that its highest, a court could not be satisfied of guilt beyond reasonable doubt”

Colin Romo did not recognise the shooter because of the mask. Rose Maesubua did recognise him; she knew him and says she saw him. Whether her evidence may be relied upon may be argued but there is that evidence corroborative in a material respect. The other supposed defect the evidence relied upon, relates to the absence of forensic connection of this accused with the killing. No pistol was produced for instance to connect the accused’s possession with a gun before the killing with that used in the killing, for the gun seen with the accused before the killing is not in evidence. A gun was in his possession leading to the time of the killing.  Again this is circumstantial evidence upon which the prosecution may rely.  It still remains, however for the prosecution to prove the case beyond reasonable doubt although considering this no case submission, I am satisfied the circumstantial evidence taken at its highest leads to that conclusion.
 I refuse the no case submission in relation to the first charge.
 Stand up please Edmund Sae.
You have a right to address the court, either personally or by your advocate, you have a right to give evidence on your own behalf, or to make an unsworn statement and to call witnesses in your defence.  
The court requires you or your advocate to state whether it is intended to call any witnesses as to fact other than the accused person yourself.
I will allow a short adjournment to converse with your counsel.

Brown J