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Foster v Reginam [1995] SBCA 4; CA-CRAC 008 of 1994 (27 September 1995)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Criminal Appeal No. 8 of 1994

BETWEEN:

ROBERT FOSTER
First Appellant
ARUAFU LOEA
Second Appellant
SAEFAFIA DUSU
Third Appellant

AND:

REGINAM
Respondent

CORAM: KIRBY P., SAVAGE JA, PALMER JA

DATE OF HEARING: THURSDAY 31 AUGUST 1995
DATE OF JUDGMENT: SEPTEMBER 1995

JUDGMENT

THE COURT: The appellants, Robert Foster, Aruafu Loea (sometimes called Ambrose Aruafu) and Saefafia Dusu, were jointly charged in the High Court at Honiara on an information presented by the Director of Public Prosecutions charging them with one count of murder. The information went on to charge Loea and Dusu with one count of common assault also. They were tried on a number of days in April, May, June and July 1994, being a total of 13 days, before the learned Chief Justice. On the 26th August he gave judgment convicting all three appellants on the count of murder and the latter two on the count of common assault. They were sentenced to life imprisonment on the murder count but, as far as the record shows, no separate sentence was imposed in respect of the common assault count. The three appellants have all appealed against their convictions for murder but there is no appeal in respect of the common assault count.

The events surrounding the killing, which took place during a brawl outside the entrance to a public dance, were described by a number of eye witnesses and, as one might appear in such circumstances, they paint, in some respects, a somewhat confused picture. However, broadly stated it can be summarised as follows. A fundraising dance was being held at Vura III, Honiara, on the 1st August 1992. There were two men on the gate at the entrance to the dance, one of whom, Nelson Nisa, was the man later killed. At some stage some men, including the appellants Foster and Dusu, came to the gate. They asked for, and bought, some beer; they also asked to be allowed to see a named person who was inside. They were refused entrance as the fee was $4 and they were not prepared to pay. They moved away. The appellant Loea a little later went to the gate and tried to enter. He too, was denied entry as he was prepared to pay only $1. He then went to the group first turned away by the gatekeepers and told them how he had been denied entry. Somebody proposed they should go back to the gatekeepers and deal with them. The appellant Loea moved towards the gate and the other two appellants also moved towards it. Loea went up to the gatekeepers while Dusu stood near a small tree a few metres away. Loea and the gatekeeper Nelson Nisa started to struggle and Loea pulled him away from the gate towards the small tree where Dusu was standing. Dusu joined the fight but Loea apparently then moved away and Dusu pulled Nisa over to where the appellant Foster was standing. He came out from under a big tree and joined the fight. During this exchange he stabbed the deceased Nisa in the chest with a knife. Nisa fell to ground and did not move again. The three appellants were all identified by eye witness as the men involved and the parts they individually played in what happened. Two witnesses also gave evidence that the appellant Foster had spoken to them afterwards and said that he had killed the gatekeeper.

Evidence had also been given that earlier in the evening the appellant Foster had been with some other young men and when walking from Point Cruz to the house of one of the group at Vura a knife, about 26 cms long and described as a butchers knife, had been found beside the track they had been following. This knife had ended up in Foster’s possession and he had put it into his boot under one trouser leg. It is clear that the appellant Dusu later, before they went to the dance, became aware that Foster had the knife and that he was carrying it in his boot. It was this knife that Foster used to stab and kill Nelson Nisa. The appellant Loea did not join the group until, as described above, they had been refused entry to the dance and they had not previously been known to him. It would appear that he was unaware that Foster had a knife until, as is referred to later, Foster called out.

The three accused each made statements to the Police, after being cautioned, and though the statements were challenged they were admitted in evidence by the learned Chief Justice after a voir dire in which the evidence relating to the taking of the statements by the Police was taken. The appellant Foster in his statement admitted much of what had been deposed to by the other witnesses. He specifically said he kicked the deceased and the knife fell out of his boot to the ground. He picked it up and tried to defend himself with the hand in which he was holding the knife, though he said that at the time he did not know where the knife was. He said he stabbed the deceased by accident. He repeated the accident explanation more than once.

We discuss the statements made by the other two later but turn now to consider the appellant Foster’s conviction and the grounds of his appeal. Murder is defined in s.193 of the Penal Code as follows:

“193. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder and shall be sentenced to imprisonment for life”.

The intentional stabbing of another person is plainly an unlawful act so the questions that arose were whether it was intentional, or accidental as Foster contended, and if intentional was it of malice afore thought. The learned Chief Justice held it was both intentional and of malice aforethought. Before considering those two questions it is necessary to consider first his grounds of appeal. The first of which, stated broadly, was that his caution statements were wrongly admitted in evidence.

The basis for this ground was, in effect, first that the statements had not been made voluntarily and thus were inadmissible and, secondly, that even if made voluntarily and thus were admissible they should have been excluded as having been obtained unfairly by reason of a breach of the Judges’ Rules. In respect of the first basis, a number of matters were urged including alleged denials of food, threats of assault and general intimidation. In respect of the second basis it was contended the record of the interview was improperly completed. We do not think there is any weight in these points. His Lordship carefully and correctly considered the principles involved in his Ruling on the voire dire and, as he said, he heard the evidence being given and observed the prosecution witnesses and the accused as they gave their evidence. He was wholly satisfied that Fosters statements were made voluntarily and he rejected the allegation of impropriety in relation to the taking of the statement. He reached the firm conclusion that no unfairness would arise in admitting Foster’s statements. We see no reason whatever for disagreeing. In passing we observe that the whole basis of the defence of accident is based upon these caution statements; without them there was no foundation upon which to raise the defence.

The learned Chief Justice in his judgment dealt with the accident defence fully and carefully. He canvassed the evidence of the prosecution witnesses who described what happened and the appellants account as contained in his statements and concluded that the “act of stabbing the deceased by the accused Robert Foster [was] far from being accidental. It was a willed act”. Having read the evidence ourselves we are quite satisfied he was right and we add on this issue that we do not think it matters, as was argued by the appellant in his grounds of appeal, when or just how he came to be holding the knife. The act of stabbing the deceased with the knife was intentional; it could scarcely be otherwise.

The appellant Fosters other grounds of appeal were, first, that the learned Chief Justice took into account against him statements contained in the caution statements of the other two appellants. We do not think this is so. In his general summary of events the learned Chief Justice referred to the evidence generally including the caution statements of all three accused. The appellant submitted that it should be implied that because he used them in his general summary he used them also in considering the individual accused’s cases. We do not think any such implication follows. In our view he clearly considered each accused’s case separately and in this appellant’s case he plainly did not take into account matters contained in the statements made by the appellants Loea and Dusu. We do not think there is any substance in the last ground of appeal urged to the effect that the learned Chief Justice erred in failing to discuss the truthfulness of the appellant’s statements or alleged inconsistencies in the prosecution evidence. We are satisfied that he considered and assessed all the evidence relevant to the appellant Foster fully and carefully.

The only remaining issue in respect of the appellant Foster is the learned Chief Justice’s determination that he acted with malice afore thought. The appellant did not in fact challenge that finding in any of his grounds of appeal and it is not therefore strictly necessary to consider it further in respect of Fosters appeal. However, the question of malice afore thought is directly relevant to the appeals of the other two appellants so it is convenient to discuss it now. S.195 of the Penal Code is as follows

“195. Malice aforethought may be expressed or implied and express malice shall be deemed to be established by evidence proving either of the following states of mind preceding or co-existing with the effect or omission by which death is caused, and it may exist where that act is unpremeditated -

(a) an intention to cause the death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.”

The learned Chief Justice was not satisfied that Foster intended to cause the death of the deceased but he was satisfied he intended to use the knife on the deceased and that he did so use it. In result he was satisfied that Foster intended to cause grievous bodily harm to the deceased; and we do not think it could possibly be argued otherwise when a person uses a knife of this size in this way in these lines. It follows he acted with malice aforethought. His appeal is accordingly dismissed.

We turn now to the appeal of the other two appellants. The Crown put the cases against them on the basis that they were parties to the offence committed by Foster in terms of S.21(b), that is, doing an act to enable or assist another to commit the offence and s.22, which is the joint offenders in prosecution of a common purpose provision. That section is as follows.

“S.22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

There does not seem to be evidence which enable a conviction to be sustained on an aiding basis under s.21(b), which would require knowledge or an intended use of the knife, and the learned Chief Justice considered the matter on the basis of s.22. He found that after they had been refused entry to the dance the group had stood beside the main road and talked together about going back to the dance entrance gate and causing some sort of trouble or fight. There does not seem to have been any doubt about that. He then went on to say that one need only to look at the caution statements of the appellants to see that they both knew that Foster had a knife with him and that during the course of the fight Loea and Dusu received instructions from Foster to pull the deceased to where he was standing, he saying also there was with him the knife. The learned Chief Justice then held that both appellants did what Foster directed them to do. Unfortunately, this is not wholly correct. He then went on to hold that there was a common purpose to assault the deceased, that the two appellants knew Foster had a knife with him and that when they heard him call out “pullim come olsem, knife long here” they could not have failed to foresee the probability of Foster using the knife.

After this protracted trial, with its broken periods of hearing spread over some four months, the events as described in the oral evidence and contained in the caution statements of the accused had, perhaps not surprisingly, become on some aspects a little confused in the learned Chief Justice’s mind. At all events it is clear that the appellant Dusu in his statements did not say or admit that he had heard Foster call out to pull the deceased over to him where he was standing and say that he had the knife with him. Dusu admitted that he knew Foster had the knife, as it had been shown to him earlier in the evening when he had been with Foster at Naha. He maintained, however, that after Loea whom he had only just met joined them, and complained about not being allowed into the dance, he Dusu was told to go and punch the gatekeepers and fight them. He said that when he did so he was punched back and he fell down. This corresponds with the oral evidence of one of the eye witnesses. He said he was then attacked by two men and held down till he managed to escape. Later he encountered Foster again who told him he had stabbed someone. Loea, on the other hand, in his statement said that after he was refused entrance to the dance he spoke to the group which included Foster and Dusu. He said he did not know them; this was the first time he had met them. According to him they told him to get the gatekeepers angry so that they could fight them. He said he did this and one of the group followed him. He also admitted that he heard one of them shout from under a tree to “pull him to me, here’s the knife”. His caution statement account of how the fight progressed then differs from that given by the surviving gatekeeper and other eye witnesses but there clearly is confusion on the question of who was standing beside which tree. He also said in his second interview caution statement, that one of the group who had urged him to get the gatekeepers angry had said he had a knife.

It appears to us that the learned Chief Justice has in advertently used Loea’s caution statement in reaching the conclusion that both appellants heard Foster calling out, when in fact only Loea admitted that, and both had pulled the deceased over to him which again was only admitted by Loea. The eye witness evidence of the surviving gatekeeper, it may be noted, was that Loea had moved away and that it was Dusu and the deceased who were fighting when Foster joined in and struck the fatal blow.

It is of course, not permissible to take one accuseds statement into account when considering the case against another accused, and in the light of the learned Chief Justice’s apparent use of Loea’s statement when considering the case against Dusu and in the light of the confused state of the evidence as to just what happened we have considered it necessary to review the whole of the evidence in relation to the crucial issue of the nature of the common purpose embarked upon by these men in order to determine whether it is established beyond reasonable doubt that the use of the knife by Foster was a probable consequence of carrying out that common purpose. We are left with a doubt and have come to the conclusion that it would be unsafe to allow the convictions for murder of Loea and Dusu to stand. It is clear that the matters principally relied on by the learned Chief Justice to satisfy himself that these two men could not have failed to foresee the probability of Foster using the knife were not established in the case of Dusu; he never admitted hearing Foster call out and there was no independent evidence of it. For Loea’s case the position is some what different. He had never met these men before and while agreeing to join them in a punch-up to gain access to a dance seems quite likely, to do so when a dangerous weapon was to be used is another matter. Certainly he protested in his statements that he had not meant to kill; in effect he said that what he had done was to go back to the gatekeepers and start a fight. There is also the clear evidence of the uninjured gatekeeper that Loea had moved away before the fatal blow was struck.

It may well be that the learned Chief Justice’s view that these two men must have foreseen that the use of the knife was a probable consequence, we are left with a doubt. In these circumstances we think it would be unsafe to allow the convictions to stand, which conclusion brings their cases within the other miscarriage of justice provision of s.22 of the Court of Appeal Act 1978. We do not think the interests of justice require there to be a new trial. Their appeals are allowed and their convictions for murder are quashed and judgments of acquittal are to be entered.

The convictions of these two appellants for common assault, however, are unaffected. They have already been in prison for a longer period than could have been imposed for that offence and accordingly they are to be released immediately.

BY THE COURT

SAVAGE JA

IN THE COURT OF APPEAL OF SOLOMON ISLANDS

Criminal Appeal Case No. 8 of 1994

FOSTER & OTHERS

v.

REGINAM

KIRBY P
SAVAGE JA
PALMER J

CRIMINAL LAW & PROCEDURE - murder - intention of accused - malice aforethought - whether intended to kill deceased - whether intended to occasion grievous bodily harm to deceased - deceased killed by stabbing by app 1 - evidence that apps 2 and 3 involved in fight with deceased prior to stabbing - evidence that they directed deceased in direction of app 1 - whether apps 2 and 3 knew that app 1 had knife and reasonable anticipated that it would be used by app 1 - whether appes 2 and 3 guilty of assault alone - held -

(1) In the case of apps 2 and 3 an error had occurred in recording their knowledge of the existence of a knife and hearing a call by app 1 to bring the deceased to him as he had knife;

(2) The objective evidence of the knowledge of those appellants of the knife and of their movements made it unsafe to conclude that apps 2 and 3 reasonably anticipated that app 1 would use the knife on the deceased as distinct from assaulting him;

(3) Accordingly, convictions of apps 2 and 3 set aside as unsafe.

EVIDENCE - co-accused - use of out of court statements against others - absence of express use - whether use to be implied - held; It is not implied - no error in conviction of app 1.

CRIMINAL LAW & PROCEDURE - caution statement - admission of on voir dire - allegations of police assaults and food deprivation - primary judge (Muria CJ) rejects allegations - held: No error - app 1 properly convicted.

ORDERS

1. In the appeal of ROBERT FOSTER, appeal dismissed.

2. In the appeal of ARUAFU LOEA and SAEFAFIA DUSU in each case:

(i) Appeal against convictions of murder upheld;

(ii) Convictions of assault confirmed;

(iii) Quash convictions of murder;

(iv) Direct the acquittal of each appellant on the charge of murder

(v) Order the release of the appellants forthwith